Volume 3, Issue 1

Volume 3 Issue 1 September 2017
University Of Strathclyde
Glasgow, United Kingdom
Volume 3 Issue 1 September 2017
BOARD OF EDITORS
Editor-In-Chief
SAVIO BAPTISTA
Managing Editors
JAMIE MCGOWAN
APOSTOLOS STAMATAKIS
Senior Content Development Editors Content Development Editors

NINA EWING MARY DECOLONGON
STUART JONES RACHAEL LIVINGSTONE
AMRIT SINGH PAWAR MOLLY O'BRIEN
CARA TEVEN
Senior Special Assignments Editors Special Assignments Editors

ROISIN FLATMAN SAMARA CROFT
PETER JANIK SARAH DALLIMORE
DYLAN WELSH ERIN FERGUSON
NATHAN STOKOE
Senior Online Content Editors Online Content Editors

ALISON PORTER ZARA CHATIR
SARAH TOLLAND ALANNAH MCPHEE
Senior Articles Editor Articles Editors

MIKE SIMPSON OLIVIA DENHEEN
ZEINAB KHAN
Senior Special Projects Editor Special Projects Editors

LUCY CUSICK ZOE KERR
ALYSSA PINDER-MOSS
Senior Production Editor Production Editors

EMMA MCGEORGE ANELA HASA
LAURA WILLIAMS
Digital Media Consultants Graphic Designers

ABDUL REHMAN ELENA BENITEZ ESPINO
SHIVANI SARJAN ASYA GUMUS
BOYANA TEOFILOVA ADELE MELA
Executive Editors
VICTORIA BERGEN GREGOR JARROTT SIAN NOLAN
RHIANNE CARROLL GEORGIA MCGINLAY OLIVIA STEVEN
AISHA IQBAL HEATHER MCLEAN KATE STEVENSON
MAIA IQBAL ALEXANDER MUIR TERRI WALKER
ACKNOWLEDGEMENT
The Strathclyde Law Review would like to extend a particular thanks to the Law
School for their continuous generosity and provision of facilities, which have made
this publication possible. Our gratitude goes especially to Nicole Busby, the Acting
Head of the Law School, whose guidance helped pave the way for the successful
publication of this issue. We would also like to thank Rebecca Zahn, Mary Munro,
Stephanie Switzer, and Aileen McHarg, who gave their time to reviewing the
articles.
We would like to extend our thanks to Lisa Neilson and Morag Crawford for their
administration of the Law Reviews account. Their kind assistance over the last
year has been crucial to the success of this publication. A special thanks also goes
to Kirsty Stewart, who has updated the Law Reviews webpage on a regular basis.
This work has been instrumental to ensure the wider promotion and distribution
of our work.
The Editorial Board would like to express our gratitude to Eva Dolgyra for her
design of the new logo. We were particularly impressed with the new design and it
is our hope that this logo will become a symbol of the Strathclyde Law Review for
many years to come.
Our Editors have worked tirelessly over the last few months to prepare this issue,
and it has been a fantastic effort of teamwork and co-operation. Congratulations
are in order for the impressive dedication of everyone involved in this publication.
THE EDITORIAL BOARD

JUNE 2017
FOREWORD
By
The Right Honourable Dame Elish Angiolini

DBE QC
The University of Strathclyde is of particular importance to me, as it was through

this institution that my legal career was born. The earlier editions of the
Universitys Law Review were a resounding success and it brings me great joy to
see the university continue to expand this portfolio of impressive publications. It is
my great pleasure to welcome the new edition of the Strathclyde Law Review.
This, the third edition of the Strathclyde Law Review, comes at a time of great
change. The political and legal developments both domestic and abroad will have
public and private law implications for decades to come. It is without doubt that at
the forefront of this change will be the new generation of legal minds that will have
the power to shape our countrys future for subsequent generations.
The law has always been in a perpetual state of development and a law review such
as this is created as a means of satisfying the continuing need for further legal
discussion. It is often necessary to critically analyse the law and the highest form of
criticism can only come from a rich mix of legal perspectives.
Analysis extracted from fresh young minds and from experienced individuals with
a greater understanding of the law can ensure that the shortcomings of the law are
identified in their entirety. Where the current law is noticeably archaic, a law review
can provide valuable insight and analysis that can help to modernise the law and
where the law is dismissive of established legal principles, a law review can demand
that these rules are not forgotten.
In this time of constitutional upheaval, it is, perhaps now more than ever, an
absolute necessity to discuss the answers to the pressing legal questions of our
time. The momentous legal challenges of tomorrow will be combatted by our
answers to the legal questions of today.
INTRODUCTION
The University of Strathclyde Law School ranks highly amongst the Universitys
academic departments. When one considers the numerous accomplishments of the
institution, achieved within a remarkably short lifespan, it is not difficult to
understand why. Whilst the Law School continues to build on its proud reputation
for academic excellence, it also offers a truly unique and unrivalled educational
experience, due in a large part to the Universitys encouragement of student-run
societies and clinics within the department.
It was the success of the preceding student run societies, such as the University Law
Clinic, mediation clinic and the mooting society, that encouraged the students of
Strathclyde to publish the first edition of the Strathclyde Law Review in 2014. This
gathering of academic literature has since become highly credited in spite of its
juvenescence and it is in pursuit of this continued success that we welcome you to
the third edition of the Strathclyde Law Review. Whilst initially comprised of work
submitted by students, the law review has now moved on to include articles written
by esteemed legal professionals - even attracting the attention of the distinguished,
former Lord Advocate and Solicitor General for Scotland, Dame Elish Angiolini QC,
who has graciously agreed to write the foreword for this edition. Thankfully, writers
have not hesitated to delve into controversial topics such as prostitution, alcohol
pricing and alcohol courts. The end result of this is a comprehensive, analytical and
intellectual collection of articles that we are proud to publish under our Universitys
name. The same enthusiasm that graced the first edition of our review has not been
lost - if anything, it grows year by year, with a great variety of individuals lining up to
offer their unique, gripping and charismatic interpretations on the legal sphere as
they perceive it.
The law review has grown exponentially over the course of the past year, with many
new additions to our team. We are using student expertise to maintain a cross-
platform social media presence; while our event delegates open a more direct
dialogue between the law review and those in legal practice by attending industry
events. This has allowed us to come further than we ever could have imagined. While
we have grown, each member is still committed to ensuring the continuation of our
fast-paced increase in quality. We are now proud to say our review is more
recognisable than ever, thanks in large part to our executive team and their work -
an example of which includes the introduction of a dedicated review logo.
The incredible support given to our review is what makes this achievement possible.
Special thanks extend to our editors, digital team, special assignments team and our
graphic designers who work tirelessly throughout the year. Our appreciation now
proceeds to the Law School at the University of Strathclyde and to our sponsors for
this edition of the law review, for without their support, none of this would have been
possible. We are therefore excited to introduce to you this edition of the Strathclyde
Law Review while also looking forward to the progress that is bound to be made in
the years to come.
THE EDITORIAL BOARD

JUNE 2017
PROSECUTION? YOU HIV GOT TO BE KIDDING ME!
Elisha Hale*
With the UNAIDS recent announcement of its target to avert 28 million new HIV
infections and to ultimately halt the HIV/AIDS epidemic by 20301, it is essential
that Canada reviews its misused stigmatising laws, which may prevent this goal
from being accomplished.
I argue in this paper that there is a need to end prosecutions of non-disclosure in

Canada in order to remove the prejudicial stigma of HIV, and to achieve the
UNAIDS goal of ending this inexorable epidemic. Canadas misguided use of
existing laws require reform to promote both the termination of the stigma
associated with HIV and the promotion of education on this topic with the goal of
ending this public health issue.
I will attempt to accomplish this in four segments; part one will detail how the
failure to be tested for HIV is a serious problem in Canada along with the problems
of existing laws being used to prosecute non-disclosure. Part two will detail the
dangerous issue of stigma which surrounds HIV. Part three will detail the negative
financial and social impacts of incarcerating HIV positive individuals, and finally,
part four will discuss possible solutions that can be implemented alongside the end
of prosecutions for non-disclosure.
INTRODUCTION TO EXISTING LAWS SURROUNDING NON-DISCLOSURE

The origins of HIV/AIDS spans almost one hundred years previously to the
Democratic Republic of Congo; but was first identified as a public health crisis in
the 1980s when there was a sudden outbreak of illness among young, gay men who
each displayed similar signs of severe immune deficiency. The worldwide rate of

1
UNAIDS (2014) Countries ready to Fast Track response to end the final chapter of the AIDS epidemic.
2017, E. Hale
* LLB (Hons) graduate from Glasgow Caledonian University
1
Volume 3 Issue I September 2017

HIV/AIDS grew at an exponential rate over the next decade with the World Health
Organisation estimating over 400,000 cases by 1990.2 Over the following twenty
years the epidemic spread to over 40 million people across the globe.
The sudden outbreak in the 1980s has transcended throughout the decades and is
presently a serious problem in Canada with approximately 75,500 people living
with HIV in 2015.3 However, worrying statistics show that an estimated 25% of those
people are unaware of their HIV positive status4, and therefore without this
knowledge they are unable to take steps to prevent the transmission to sexual
partners; therefore continuing this cycle of HIV transmission.
After the original decision in R v Cuerrier5 followed in 2012 by R v Mabior6, in

Canada today it is a criminal offence to fail to disclose your HIV positive status to a
sexual partner where there is a realistic possibility of transmission of HIV7; those
who do not disclose face criminal sanctions with the most extreme punishment
being life imprisonment.
The most remarkable part of these criminal sanctions lies with the Criminal Code
which details no crime which explicitly refers to the non-disclosure of HIV or the
unlawful transmission of HIV; the Criminal Code is applied with reference to
existing crimes, most commonly aggravated sexual assault. It is argued that
criminalising non-disclosure in 1998 has failed to adequately decrease the rates of
transmission considering that in 1998 there were 2,290 reported cases of HIV and
in 2014 there was 2,044 cases8; not including unreported cases, or those where
individuals are unaware of their positive status.

2
"History of HIV and AIDS overview | AVERT", (2016) <http://www.avert.org/professionals/history-hiv-
aids/overview#footnote38_yeski1q>.
3
"The epidemiology of HIV in Canada | CATIE - Canada's source for HIV and hepatitis C information", (2016)
<http://www.catie.ca/en/fact-sheets/epidemiology/epidemiology-hiv-canada>.
4
Pearson, Catherine. "Are You Positive? 1 In 5 People with HIV Don't Know Their Status", (2011)
<http://www.huffingtonpost.com/2011/06/23/hiv-screening_n_882467.html>.
5
R v Cuerrier [1998] 2012 SCC 47.
6
R v Mabior [1998] 2 SCR 371.
7
Ibid.
8
Government of Canada. HIV and AIDS in Canada: Surveillance Report to December 31, 2014 (Government of Canada, 2014).
2
Strathclyde Law Review

STIGMA OF POSITIVE HIV STATUS
There is a serious concern that the criminalisation of non-disclosure has acted not
as a deterrent but counterproductively as a mechanism to encourage ignorance. As
previously mentioned, there has been no decrease in the transmission rates of HIV
since the ruling in Cuerrier.9
The criminalisation has only resulted in discouraging individuals from getting

tested as many fear with this knowledge comes criminal sanction surrounded with
public discrimination. Although society requires a punishment for an act we
consider to be wrong; we must look for a more appropriate and successful solution
to this issue.
Correspondingly, there is a massive stigma that surrounds the diagnosis of HIV.

This can be attributed to false stereotypes, the medias portrayal of HIV and the
apparent lack of public knowledge surrounding the illness and the effective
options and treatments now available.
Stereotypes which stem from the moral panic in the 1980s when there was little
known about the ways in which HIV can be transmitted include false beliefs that
HIV is a disease which affects only males, the LGBT community, intravenous drug
users and those who are/were involved in the sex trade. These harmful stereotypes
which were proven to be untrue many years ago are affecting HIV positive people
in many destructive ways today. They face consequences which are not limited to
loss of income, loss of relationships and loss of reputation.10
Despite the media being a constant and increasingly powerful presence throughout
the preceding decades, they have not contributed to correct these inaccurate
stigmas and stereotypes. Instead, the media fuelled the prejudice afflicted against

9
Ibid.
10
International Center for Research on Women (2005) 'HIV-related stigma across contexts: common at its core' - See
http://www.avert.org/professionals/hiv-social-issues/stigma-discrimination#footnote5_gi0ulhb.
3

those with HIV; an article that appeared in Macleans11 in 1983 highlights the
wrongly perceived correlation between gay male promiscuity and HIV. To do so, it
relied upon largely unsubstantiated claims about the number of sexual partners of
gay men who were HIV-positive, falsely stating: The vast majority of sufferers
75%are homosexual males, many of them highly promiscuous, some with sexual histories
involving many hundreds, and even thousands of partners.
These false reports and damning descriptions of the lifestyles that supposedly
applied to all individuals who contracted HIV continued throughout the decades.
This suggested that gay men were individually responsible for the disease through
their promiscuous lifestyle choices12, instead of reporting it as the public health
epidemic which was affecting all groups of society.
An example is the case of R v Aziga13 where a man who was diagnosed with HIV
subsequently had sex with eleven women; seven of whom contracted HIV and two
of whom died as a result of complications relating to AIDS. Aziga was charged with
first degree murder despite there being no specific law at the time requiring
disclosure to a sexual partner. The headlines that followed only served to highlight
the portrayal of those with HIV as contagious, overly sexualised and criminal. The
top two headlines when searching Azigas name online are HIV killer ruled
dangerous offender14 and Johnson Aziga is still looking out for number 1.15
Although Aziga is a rare case where an individual intentionally transmitted HIV,

the media portrayal made it appear that all individuals with HIV should be feared
and that Azigas actions were common among HIV positive people. From this long-
term media depiction, it is argued that HIV positive individuals are being subjected

11
Shona McKay, The Growing Canadian AIDS Alarm, Macleans (11 July 1983) 34, cited in Edward Albert, Illness and
Deviance: The Response of the Press to AIDS in Gross & Woods, note 16, 393 at 39697.
12
Kirkup, Kyle. "Releasing Stigma: Police, Journalists and Crimes of HIV Non-Disclosure",
(2016) <https://kylekirkup.files.wordpress.com/2013/01/olr-typeset-1-kirkup-2.pdf>.
13
R. v. Aziga [2008] O.J. No. 2431 .
14
Gale, Kimberley. "HIV killer ruled dangerous offender", CBC News (2011) <http://www.cbc.ca/news/canada/hiv-killer-ruled-
dangerous-offender-1.927621>.
15
Clairmont, Susan. "Johnson Aziga is still looking out for No. 1", Hamilton Spectator (2011) <http://www.thespec.com/news-
story/2165590-johnson-aziga-is-still-looking-out-for-no-1/>.
4

to unfair stereotyping, which may reflect against the publics perception of the
presumption of innocence. The stigma and the branding of all HIV positive people
altogether as criminals could have serious detrimental effects on an individuals
right to a fair and unbiased trial and may be making its way into Canadas judicial
institutions.
In an unreported case documented on aidsactionnow.org16, a committed

campaigner Carl Rush experienced, first-hand, the bias that is faced by HIV
positive individuals on trial for non-disclosure.17 Despite the requirement of the
prosecution to prove beyond a reasonable doubt that sexual acts took place, that
the defendant did not disclose his HIV status and prove a lack of consent knowing
of this HIV disclosure; the jury somehow convicted the accused, despite countless
contradictions from key prosecution witnesses.
The defence counsel even stated: Im a little shockedI think the jury got it wrong,
which poses the question of whether the accused was convicted simply because he
was known to be HIV positive? Without any doubt, it seems that the HIV positive
status of the defendant acted as a catalyst in the conviction. It is hard to imagine
any jury convicting without the proof of the sexual activity required to satisfy the
criminal charge. As pointed out by journalist Zach Stafford, this is a man
sentenced to a life in prison purely as a result of an infectious disease18; contracting
chickenpox also a contagious disease does not result in a sentence of life
imprisonment despite there being life-long treatments for both. Canadian laws are
outdated; reflective of the 1980s where contracting HIV was a death sentence; as
such the Courts were reflective in their harsh sentencing.
This public stigma resulting from the medias depiction could easily influence a
jurys verdict in a case where witnesses rely on the prosecutions presentation

16
"Action = Life", (2015) <http://www.aidsactionnow.org/>.
17
"A Spectacle of Stigma: A First-hand Account of a Canadian Criminal HIV Exposure Trial - See
http://www.aidsactionnow.org/?p=1057#sthash.0twkUeGG.dpuf", (2013).
18
Zach Stafford Failure to disclose HIV-positive status is a felony that leads to a much worse crime, (2015)
<https://www.theguardian.com/commentisfree/2015/jul/17/hiv-aids-disclosure-felony-std-tests-la>.
5

which often dramatizes and falsely represents the scale of HIVs effects without
explaining the advanced medical options available, with injurious results for the
accused; an issue that must be investigated urgently to prevent further miscarriages
of justice.
SOCIAL AND ECONOMIC IMPACTS OF PROSECUTION

It is hardly surprising that the public fear HIV due to the outdated and lack of clear
public health campaigns detailing how HIV is transmitted, how to protect against it
and the many successful treatments available. Without this knowledge, the public
are still stuck in the mind-set that they had in the 1980s when there was
substantially less knowledge and medical advancement for treatments for the
disease. In a study conducted in 2012, 61% of Canadians considered themselves to
have a low or medium level of knowledge of HIV/AIDS showing a decline in
Canadians knowledge since the same study was conducted back in 2006.19
These factors are resulting in a stigma, which in turn results in a lack of testing,
corresponding to higher numbers of individuals who participate in unsafe sex or
risky behaviours without awareness of their status; thus, not accessing the
appropriate medical treatment. Treatments which when started early enough can
allow a HIV positive person to live as long as a HIV negative person.20 This lack of
awareness can result in the unintentional transmission of HIV with criminal
charges following with individuals then incarcerated in Canadian jails.
Finally, the contention of prosecutions of non-disclosure of HIV lies with the high
cost of incarcerating individuals within the prison system. Alongside the financial
considerations, there is also a high incidence of needle sharing within the prison
system alongside although not frequently reported sexual violence. Both of
which are high risk behaviours for the transmission of HIV.

19
EKOS Research Associates Inc. 2012 HIV/AIDS Attitudinal Tracking Survey. Final Report. (October 2012) See http://epe.lac-
bac.gc.ca/100/200/301/pwgsc-tpsgc/por-ef/public_health_agency_canada/2012/072-11/report.pdf.
20
Zach Stafford Failure to disclose HIV-positive status is a felony that leads to a much worse crime, (2015)
<https://www.theguardian.com/commentisfree/2015/jul/17/hiv-aids-disclosure-felony-std-tests-law>.
6

To give a brief overview: 17% of male prisoners and 14% of female prisoners in
Canada admit to using drugs inside prison and 60% of these instances were with
used needles.21 Initiatives such as the safe tattooing programme were shut down in
2007 by the Public Safety Minister on the grounds of not wanting to waste tax-
payers money, despite a report in the same year finding that 68% of inmates
admitted to getting a tattoo behind bars.22 The safe needle exchange programme
behind bars was also cancelled due to the unwillingness of the Conservative
Government to be seen as encouraging drug use behind bars, they feared that the
needles would be used as weapons and that the programme would increase drug
use.
However, at least ten research projects have proven this fear to be unfounded;
there were no new reported security issues with the needles and no increase in
drug use; in fact, there was a decrease in injection related diseases and an
increased uptake in treatment programmes.23 This alleged concern for taxpayers
money does not add up, considering that the lifetime cost of treatment for one
Canadian who contracts HIV is estimated to be over $250,000.24 Canadian prisons
are already overcrowded and expensive costing $114,000 annually per inmate25; by
adding unnecessary inmates who may unwillingly transmit HIV to fellow prisoners,
causing soaring healthcare expenses is senseless.
Whilst the incidences of sexual violence in Canadian prisons are not at the same
extreme level as American counterparts26; it is an essential issue to consider in the
discussion of the prosecution of non-disclosure. Reports from Stop Prison Rape
estimate that 300,000 inmates in North America are victims of sexual assault each
year. Correctional Services and Statistics Canada do not collect data on sexual

21
Correctional Service of Canada, 2010, 12.
22
Polych, Carol. "Needle Exchange in Prison", (2012) <http://canadianharmreduction.com/blog/needle-exchange-in-prisons>.
23
Ka Hon Chu, Sandra. "Making needle exchange programmes work in Canada Part 3", (2015)
<http://blog.legalaid.on.ca/2015/02/19/making-prison-needle-exchange-programs-work-in-canada-part-3/>.
24
Werb et al., 2008.
25
Thibault, Eric. "Federal inmate cost soars to $117Gs each per year", Edmonton Sun (2014)
<http://www.edmontonsun.com/2014/03/18/federal-inmate-cost-soars-to-177gs-each-per-year>.
26
Ellenbogen, Philip. "Beyond the Border: A Comparative Look at Prison Rape in the United States and Canada", (2009)
<http://www.columbia.edu/cu/jlsp/pdf/Spring2008/02Ellenbogen42.3(revised).pdf>.
7

violence in prisons and so there is little data available to scrutinise purely Canadian
statistics.27 However, with rates of HIV being ten to thirty percent higher in prison
compared to rates outside of prison28 even a small prevalence of sexual violence in
prison contributes to an exponential increase of transmission of HIV which, when
prisoners are released unaware of the infection that they are bringing back to
their communities causes the epidemic to continue. In contrast, advocates of
prosecution argue the need of a deterrent to restrain people from intentionally
spreading HIV.
THE FUTURE OF CANADIAN HIV/AIDS DISCLOSURE LAWS

Intentional cases are rare, most people as discussed in this paper are unaware
of their status, and those who are regularly take preventative steps to protect
against transmission; as such a focus on prosecution will not address the problem.
The true reason for criminalisation may be the societal expectation of

accountability and punishment for the perceived social wrong that the individual
has committed, whether intentional or unintentional. However, as the saying goes,
it takes two to tango, the responsibility cannot lie solely with the individual with
HIV; the consenting sexual partner must be encouraged to have necessary
discussion of HIV status if they are truly concerned about protecting themselves
before sexual activity occurs. The prosecution of non-disclosure may provide a
false sense of security to sexual partners29 who may believe that the protection of
non-disclosure will ensure the disclosure of a positive status before engaging in
sexual intercourse without the consideration that their partner may not be aware
themselves.

27
Alison, Robert. "Prison rape remains a tolerated terrorism", Winnipeg Free Press (2011)
<http://www.winnipegfreepress.com/opinion/analysis/prison-rape-remains-a-tolerated-terrorism-122853709.html>.
28
Health Now, Prison. "Prison Health Now | About the Issue", (2013) <http://www.prisonhealthnow.ca/learn-more/about-the-
issue.php>.
29
Mesika, Robert. "The Ethics of HIV Criminalization", (2012)
<https://www.brandeis.edu/ethics/ethicalinquiry/2012/July.html>.
8

To end this epidemic, we need to encourage safe sex practices with free condoms
and safe needle programmes such as Insite30 both inside, and outside of
prisons. We need to talk more openly about HIV/AIDS as a society to provide
accurate education to children, to ensure they do not grow up in a stigmatised
society like we have today. We need to re-educate society through the same source
we learned to stigmatise; through the mass media who can make a huge impact
with time.
We need to end this unfounded stigma and incorporate HIV tests into routine
medical check-ups to alleviate this fear of HIV. Finally, we need to end the
prosecution of non-disclosure and instead focus the time, resources and finances
on these more appropriate and proven methods. If we do, its possible that the
UNAIDS goal of ending the HIV/AIDS epidemic by 2030 is not actually as far out
of reach as we are led to think.

30
Coastal Health, Vancouver. "Insite - Supervised Injection Site" <http://supervisedinjection.vch.ca/>.
9
GLOBALISATION OF PLEA BARGAINING: AN IMPERATIVE
REFORM OR A COMPROMISE OF IDEALS?
Abubakar Bukar Kagu*
INTRODUCTION
Contemporary criminal justice procedures are revealing some unprecedented
contours towards what some scholars term as new managerialism, a
multidirectional transition from the orthodox idea of retribution to one that is
driven by economic interests (Damaska, 2004: 1018-1019). In its most simplistic form,
plea bargaining is a process where the defence strikes a deal with the prosecution
or the judge to plead guilty in exchange of some penal concession or the dropping
of some charges.1 Proponents of this idea argue that it brings efficiency to a system
bedevilled with slow and protracted court processes. Others, however, caution that
this desperate need for efficiency and exaggerated sense of urgency lacks
perspective and context.2 This system, it has been argued, is a form of revolution in
criminal justice changing the engagement and relationship between the traditional
all-powerful state and the weak citizen. By placing more negotiation power in the
hands of the defence, the opportunity to negotiate criminal charges and sentence
can be seen as a phenomenon that has redeemed the interest of parties by altering
the traditional subordination of the defendant under the powerful judge.3
THEORETICAL EXPLANATIONS
Numerous juxtapositions have been put forth to try to explain the relationship
between the state, the individual and the community when considering the reasons
for legal transformations. 4 Perhaps the utilitarian theme is that which gives a
clearer idea about the practice of plea bargaining in ways that are easy to

1
GA Ferguson Role of the Judge in Plea Bargaining [1972]. The Criminal Law Quarterly pp. 15, 26; HS Miller, WF Donald
and JA Cramer, Plea Bargaining in the United States. [1978]. Washington, D.C.: National Institute of Law Enforcement and
Criminal Justice.
2
M Feeley. Plea Bargaining and the Structure of the Criminal Process [1982]. Justice System Journal p. 388
3
R Rauxloh Plea Bargaining in National and International Law: A Comparative Study [2012]. Routledge p 84
4
M McConville and CL Mirsky Jury Trials and Plea Bargaining: A True History [2005]. Portland: Hart Publication, p 5.
2017, A. Bukar Kagu

10
* Ph.D Candidate at the University of Sussex


understand and to criticise; hinging the debate on the notion that plea bargaining
as an effective and less costly process than conventional criminal trials. However,
there are numerous variables that drive and influence the application of plea
bargaining all which have caused a gravitation away from the idea of an adversarial
trial.
UTILITARIAN THEORY
While judges and legislators do not often contemplate the economic costs when
making decisions on crime and penology, high costs often influence legal reforms,
leading to the adaptation of new approaches to justice administration. Diverse
interests and reasoning for its increased use include institutional constraints,
organisational incentives and the prevailing socio-economic objectives of the state.
For instance, Einstein and Jacob describe plea bargaining as a product routine
practice and the quest for incentive by the principal participants in criminal justice
administration.5 This argument suggests that plea bargaining is a system driven
mainly by the overriding interests of defence attorneys, judges and prosecutors to
foster the replacement one procedure (trial) with another (negotiation).6
Evidently, encouraging offenders to plead guilty lessens the burden of long and
costly procedures as much as it lessens the nuances of legal technicalities,
especially of adversarial proceedings. This argument goes further to stress that
without some of these unconventional procedures, the entire criminal justice
system risks being overwhelmed by inefficiency. In the words of Chief Justice
Berger, if every criminal case were to go through a full trial procedure, the states
would need to multiply by many times the number of judges and court facilities.7
However, some refute this contending that it is not caseload but the length of
individual proceedings that strains the justice system. Plea bargaining, they argue,
is a system mostly promoted by legal practitioners for the purpose of convenience,

5
M Feeley Plea Bargaining and the Structure of the Criminal Process [1982]. Justice System Journal, p. 341.
6
Ibid
7
Santobello v. New York, [1971] 404 U.S. 257
11


which often has little to do with the general interest of all the parties that have a
legitimate stake in criminal justice.8
Cooper suggests that the prevalence of this practice is a reflection of the conflicting
trajectories of procedural adjustment based on the representations of subsisting
socio-legal philosophies that often necessitate the introduction of new methods to
relieve the functional aspects of the justice system.9 In this respect, one is bound to
look beyond the simple caseload and utility argument to the general perspective
that explains the changing nature of penal policies. Offences that were traditionally
treated as minor civil violations have now been elevated to become criminal
responsibilities e.g. tax-related offences and environmental misconducts. 10 In
todays criminal justice system of England and Wales, there are more than 8000
offences of strict liability,11 and in the US, there are over 4,000 existing federal
crimes.12
Aware that securing a conviction for these offences is often difficult, especially with
a jury that is becoming increasingly reluctant to understand how some of these
minor offences should lead to a jail sentence. Prosecutors have often resorted to
plea bargaining with the assurance of certainty, since the accused is expected to
plead guilty without contest. It is, however, important to state that, in some
instances, plea bargaining presents bipartisan benefits in the form of penal
concession for the defence and resource management for the state. These benefits,
according to Caldwell, were among the key factors that give plea bargaining its
legitimacy and keep all of its lapses within constitutional limits. 13 Hence,

8
R Rauxloh Plea bargaining in national and international law [2012]. Routledge, p. 45.
9
HHA Cooper Plea bargaining: A Comparative Analysis [1972]. New York University Journal of International Law and Politics,
5, p. 427.
10
S Maffei Negotiations on Evidence and Negotiations on Sentence: Adversarial Experiments in Italian Criminal
Procedure [2004]. Journal of International Criminal Justice, 2(4), p 1051.
11
R Rauxloh Plea bargaining in national and international law [2012]. Routledge, p 65.
12
Right on Crime Report, November, 2010.
13
HM Caldwell Coercive Plea Bargaining: The Unrecognized Scourge of the Justice System [2011]. Catholic University Law
Review, 61 (63), p 68.
12


proponents emphasise any significant retreat from summary procedures will have a
negative effect on the efficiency of the criminal justice system.14
These notions reflect the Economic Theory, which sees plea bargaining as an
imperative mechanism that relieves the state of the enormous economic and
administrative pressure by avoiding resource-consuming full trials.15 Hence, even
the critics of this practice have conceded that it is flexible and faster. Alschuler was
quick to point out that the notion of flexibility is perhaps an advantage that all
lawless systems exhibit in comparison with systems of administering justice by
rules.16
Whatever utility it presents must therefore be balanced against the utility of pre-
ordained rules, which can limit the importance of subjective judgments and
promote equality.17 Any system that promotes guilty pleas must also replicate the
same pattern of outcomes that trials would have produced.18
Samaha also refutes the caseload theory, emphasising that the notion is empirically
incorrect. 19 The caseload theory he argues, is over amplified by courthouse
workgroups i.e., prosecutors and judges who are the main beneficiaries of plea
negotiations. Yet, the utilitarian school strongly insist on the position that even if
courts have the capacity, disallowing plea bargaining will see the ratio of
prosecutions and convictions becoming extremely small because sentences could
not be raised high enough to maintain deterrence, especially not when both
economics and principles of desert call for proportionality between crime and
punishment.20

14
FD Cousineau and SN Verdun-Jones Evaluating Research into Plea Bargaining in Canada and the United States: Pitfalls
Facing the Policy Makers. [1979]. Canadian Journal of Criminology, 21, p 299
15
NA Combs Copping a Plea to Genocide: The Plea Bargaining of International Crimes [2002]. University of Pennsylvania
Law Review, 151 (1), pp. 1157; WJ Stuntz Plea bargaining and criminal law's disappearing shadow. [2004]. Harvard Law
Review, 2548-2569; J Bowers Punishing the innocent. [2008]. University of Pennsylvania Law Review, 1117-1179.
16
AW Alschuler The Prosecutors Role in Plea Bargaining [1968] The University of Chicago Law Review, 36 (1), p 71.
17
Ibid
18
RF Wright Trial Distortion and the End of Innocence in Federal Criminal Law [2005]. University of Pennsylvania Law
Review, 154, p. 83.
19
J Samaha Criminal Justice (with Infotrac) [2005]. Cengage Learning.
20
FH Easterbrook Plea bargaining as compromise [1992]. The Yale Law Journal, 101(8), p. 1975.
13


Beyond the relevant points raised in the much-discussed utility of plea bargaining,
there is another important theoretical context that strongly influenced any kind of
negotiation with an offender; that which is embedded in the individual decisions
that parties make while negotiating. As shown in a study by Wright, both criminal
justice institutions and parties are often influenced to enter into plea bargaining
based on the individual benefits that such negotiation presents.21
DECISION THEORY
Scholars have attempted to explain what factors motivate parties to reject trials and
enter into plea bargaining. 22 Earlier models include the Economic Model of
Landes, in which he described plea bargaining as synonymous to a market
transaction in which the prosecutor buys the guilty plea of a defendant in exchange
for a promise to pay with sentence leniency.23 This theory suggests the motivation
is to maximize the expected sentences subject to procedural constraint. The theory
further suggests that the likelihood of the prosecution agreeing to a plea bargaining
is higher when the expected penalty on trial is smaller.24 Nagel and Neef supported
this position in their decision theory and equilibrium model, in which they
indicate that parties enter a plea bargaining in the shadow of expected trial
outcomes, focusing mainly on the probability of acquittal and the proportionality
of sentence discount.25 This suggests that in the cause of plea bargaining, each of
the parties is driven by the sentiment of risk and reward, and by what they are
willing to take or compromise. Although this does not take away the relevance of
other factors in plea bargaining, it shows that risk sentiment and foreseen benefits
play a key role in the success of a plea bargain.
Landess theory, however, has its critics who contend that the theory was not clear
about how the individual decision-making accounts for certain aggregate, or macro,

21
RF Wright Trial Distortion and the End of Innocence in Federal Criminal Law [2005]. University of Pennsylvania Law
Review, 154, pp. 79156.
22
RE Scott and WJ Stuntz Plea Bargaining as Contract [1992]. The Yale Law Journal, 101(8), pp. 19091968.
23
WM Landes An economic analysis of the courts [1971]. The Journal of Law and Economics, 14(1), 61-107.
24
Ibid, p 64.
25
SS Nagel and M Neef Plea Bargaining, Decision Theory, and Equilibrium Models: Part II (1976). Indiana Law Journal,
52(1), pp. 1-61.
14


aspects of criminal justice.26 What Rhodes claims instead was that, the ratio of
guilty pleas to trials is negatively correlated with the severity of the sentence
exchange for guilty pleas, significant at a one percent level of confidence.27 The
outcome illustrates that defendants' demand for a trial is inversely related to the
concessions gained for accepting a guilty plea offer.28
Reinganum also claims that Landes theory has weakness as it only focuses on plea
bargaining without looking at it side by side with trials therefore assuming that all
defendants are guilty.29 In response, Reiganum brought an argument in line with
what was previously discussed by Grossman and Katz,30 his argument was based on
the conclusion that:
Sufficiently weak cases are dismissed, where this sufficiency does not
depend upon the resource cost of trial but upon the social costs and benefits
of punishing the innocent and the guilty, respectively; that defendants
against whom a sufficiently strong case exists are offered a sentence (in
exchange for a plea of guilty) which increases with the likelihood of
conviction at trial and the defendant's anticipated disutility of trial and
conviction; and finally, the defendants are more likely to reject higher
sentence offers, so that the likelihood of trial is an increasing function of the
strength of the case.31
In whatever context these theories hinge, the underlying rationale is that the
individual decisions parties make have a strong impact on the success of plea
bargaining. However, external factors such as access to information, strength of
evidence, time constraint, and legal representation cannot be ignored.32 Scott and
Stuntz pointed out that the psychology of framing and the weak sense of judgment,
especially in respect of poor and less educated defendants against experienced and
well-informed prosecutors may sometimes have effect on decisions and even the
outcome of plea bargaining.33

26
WM Rhodes The Economics of Criminal Courts: A Theoretical and Empirical Investigation [1976]. The Journal of Legal
Studies, 5(2), p 312.
27
Ibid.
28
Ibid, p 331.
29
JF Reinganum Plea bargaining and prosecutorial discretion [1988]. The American Economic Review p 714.
30
GM Grossman and ML Katz Plea bargaining and social welfare [1983]. The American Economic Review, 73(4), 749-757.
31
JF Reinganum Plea bargaining and prosecutorial discretion [1988]. The American Economic Review, p 723.
32
JS Lerner and PE Tetlock Accounting for the effects of accountability [1999]. Psychological bulletin, 125(2), p 255.
33
RE Scott and WJ Stuntz Plea Bargaining as Contract [1992]. The Yale Law Journal, 101(8), p 1912.
15


In an elaborate discussion of the decision theory, Bibas presented the shadow of

trial model, which he premised on the broader structural impediments that distort
plea bargaining. 34 These factors include agency costs, poor lawyering and the
contingencies of bail and pre-trial detention. Beyond these specific elements, there
are also factors that hinge on the broader behavioural law and economics theory
such as risk preference, overconfidence, biases, framing, denial mechanisms,
anchoring, penal concession rate etc. which all affect plea bargaining.35
In understanding, these extended factors discussed by Bibas, one also has to

understand the Functionalist Theorist which suggests that the choices and
decision to offer or accept plea bargaining has a close relationship with the
strength of evidence as a result of the advancement in institutional working
36
strategies such as sophistication in investigations and forensics. This
advancement has led to the possibility of extensive pre-trial screening that gives
prosecutors telling evidence while leaving the defendant with little room to contest
culpability.37
Both the utilitarian theory and the decision theory add to the complexity and
diversity in understanding or at least holding on to any particular theory or factor
that is most relevant to plea bargaining. What is rather clear is that plea bargaining,
unlike a trial, is a convoluted practice defined by a constellation of factors that are
dependent on individual trajectories as well as institutional objectives. Because of
the informality and fluid nature of negotiations, often done in private, every case of
plea bargaining has its own distinct characteristics.
COMPROMISING CRIMINAL JUSTICES BEST PRACTICES: A CRITIQUE

Conventional trials have evolved over the centuries to become more adversarial,
emphasising on the principles of transparent engagement before an independent

34
S Bibas Plea Bargaining Outside the Shadow of Trial [2004]. Harvard Law Review, 117 (8), p 2465.
35
Ibid p. 2467.
36
LM Mather Comments on the History of Plea Bargaining [1978]. Law and Society Review, 13, p 284.
37
Ibid.
16


judge along with the guarantees of subjecting every piece of evidence to open and
rigorous scrutiny. It has also become an aspect that upholds the principle of the
right to be presumed innocent until proven guilty. These elements are central in
the principles of due process and are arguably suppressed under the guise of plea
bargaining. But criminal justice should not forget too soon that process rights, as
Justice Felix once emphasised, are necessary compendious expression for all those
rights that must be enforced in criminal justice of all free societies.38 It is this
aspect of what scholars term as constitutional criminal procedure that all societies
should aspire to achieve through clearly defined procedural codes that protect the
fundamental values of legality and equality.39
In the context of international law, for example, the consensus is to have a system
of criminal justice that is largely free, open and adversarial. The Universal
Declaration of Human Rights (UDHR) is one of the leading international
documents that explicitly enumerate these principles. The European Convention
on Human Rights (ECHR),40 as well as the International Covenant on Civil and
Political Rights (ICCPR) also contains similar provisions, which are considered the
bedrock of a fair criminal justice procedure. Article 14 of the ICCPR for instance
states that every accused person has the right to be tried before an impartial
tribunal under the assumption of innocence, and the right to examine the
witnesses that are against them. Moreover, research has shown that these
principles are captured in the constitutions of most countries around the world,
especially in the provisions that relate to the rule of law and fair trials.41

38
Wolf v Colorado, 338 U.S 25 (1949).
39
DM Amann Harmonic Convergence? Constitutional criminal procedure in an international context [2000]. Indiana Law
Journal, 75, p 814.
40
Art. 6(2) of the ECHR states clearly, Everyone charged with a criminal offence shall be presumed innocent until proved
guilty according to law. and Art. 6(2) (d) went further to state that every accused person has the right to examine or have
examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him. The ICCPR provided in Art. 14 of the ICCPR gave similar provisions.
41
MC Bassiouni Human rights in the context of criminal justice: Identifying international procedural protections and
equivalent protections in national constitutions [1992]. Duke Journal of Comparative and International Law, 3, p 267.
17


However, others are of the opinion that, where properly administered, plea
bargaining enhances the productivity of courts.42 Yet, it is apparent that subjecting
criminal cases to some kind of commercial haggling in the offices of prosecutors is
an anti adversary method43 that accommodates unrestrained discretion that often
affects the accurate separation of the guilty from the innocent. 44 What most
courts do in the end is to administer their verdict based on what the prosecution
present and often on the things they do not say.45
Another problem with plea bargaining is that it is based on a culture that assumes
the defendant to be factually guilty and therefore expected to plead.46 Blumberg
describes it as "a contrived, synthetic, and perfunctory substitute for real justice.47
It is however not accurate to have a balanced argument without admitting that plea
bargaining, certainly brings some degree of procedural economy to the criminal
justice system. However, in the quest for procedural economy, legal practitioners
can become bound and fail to uphold the moral responsibility of ensuring justice.48
In the end, it becomes a system driven by arrangements and cooperation at the
expense of the defendant.49 The view therefore that plea bargaining is an exchange
of official concession for a defendants act of self-conviction is not out of place.50
It is important however to have a retrospective look at the development of criminal

justice as very few scholars seriously contemplate that there was a period in which

42
NA Combs Copping a Plea to Genocide: The Plea Bargaining of International Crimes [2002]. University of Pennsylvania
Law Review, 151 (1), p 157.
43
AS Blumberg and ML Barron Current Perspectives on Criminal Behavior: Original Essays on Criminology [1974]. Knopf.
p 29.
44
SJ Schulhofer Plea bargaining as disaster [1992]. The Yale Law Journal, 101(8), p 1979.
45
RE Scott and WJ Stuntz, [1992]. Plea Bargaining as Contract The Yale Law Journal, 101(8), p 1912.
46
Mcconville in R Rauxloh Plea bargaining in national and international law [2012]. Routledge, p 53.
47
AS Blumberg Practice of Law as Confidence Game - Organizational Cooptation of a Profession [1966]. The Law and
Society Review, 1, 15-39, p 24.
48
M Feeley Plea Bargaining and the Structure of the Criminal Process [1982]. Justice System Journal, p 341.
49
WM Rhodes The Economics of Criminal Courts: A Theoretical and Empirical Investigation [1976]. The Journal of Legal
Studies, 5(2), p 336; See also: e.g. Blumberg [1966] where he espoused these kinds of cooperation, saying, Indeed, the
adversary features which are manifest are for the most part muted and exist even in their attenuated form largely for external
consumption. The principals, lawyer and assistant district attorney, rely upon one another's cooperation for their continued
professional existence, and so the bargaining between them tends usually to be "reasonable" rather than fierce.
50
AW Alschuler Plea Bargaining and Its History [1979]. Columbia Law Review, 79 (1), p 3.
18


neither some form of guilty plea or summary trial was absent. 51 Langbein, for
example, reveals how the period preceding the mid-eighteenth century had
proceedings in common law that were extremely hasty, quite a departure from
adversariality.52 Feeley also discovered similar patterns from the transcripts of the
mid-nineteenth century proceedings in London where defendants were not
represented by counsel; they did not confront hostile witnesses in any meaningful
way; they rarely challenged evidence or offered defences of any kind.53 Research by
Friedman and Perceival on proceedings in the US revealed similar patterns, where
in some cases the defendants simply told their story, with or without witnesses; the
jury retired, voted and returned immediately.54 Hence, as Feeley argues, when
trials were once extensively relied upon, they were perfunctory affairs that bear but
scant resemblance to contemporary trials. They were not often deliberate and
painstaking affairs.55 Yet, it is important to stress that plea bargaining is a different
kind of approach entirely. It is at best an administrative form of approach to crime
and sentence embedded in mutual compromise where every player has his own
inner motive for avoiding trial.56 Summing up these inherent conflicts between
personal ambitions and the need for fairness, Vogler and Jokhadze state,
avaricious and overcommitted defence lawyers, incompetent trial lawyers, lawyers
anxious about their success rate or simply those lawyers wishing to curry favour
with their opponents or the court are likely to pressure defendants into pleading
guilty.57 The complexity of these multifaceted situations have made plea bargaining
operate as a system that creates situations of coercion, imposing demands upon the
accused, who is expected, at all costs to plead guilty.

51
WT Pizzi and M Montagna Battle to Establish an Adversarial Trial System in Italy [2003]. The Michigan Journal of
International Law, 25, 429; S Thaman Plea bargaining, Negotiating Confessions and Consensual Resolution of Criminal
Cases [2007]. Electronic Journal of Comparative Law, pp. 1-54.
52
JH Langbein. Land without Plea Bargaining: How the Germans Do It. [1979]. Michigan Law Review, 78(2), p 206.
53
54
LM Friedman and RV Percival The Roots of Justice: Crime and Punishment in Alameda County, California, 1870-1910
[1981]. Chapel Hill: University of North Carolina Press, p 194.
55
56
J Vorenberg Criminal law and procedure: cases and materials [1981]. St. Paul, Minn.: West Pub. Co, p 888.
57
R Vogler and G Jokhadze Plea Agreements in the Georgian Criminal Justice System: A Utilitarian Perspective. A Report
Prepared for the Georgian Ministry of Justice for Review and Consideration by the Georgian and International Rule of Law.
[2011]. Tbilisi, Georgia, p 29.
19


The broad range of discretionary powers that the prosecutor wields has resulted in
a deep imbalance of power that often undermines process rights. They decide
who to charge, what charges to bring, whether to permit a defendant to plead
guilty, and whether to confer immunity.58 In many instances, they unilaterally fit
in same kinds of charges; they are deemed appropriate to different kinds of
offences. 59 Hence, the system grows into a practice that is penologically and
morally prejudicial, subjecting the accused to condemnation without proper
adjudication. 60 Although many prosecutors rely on the strength of evidence to
coerce the defendant, such discretionary powers facilitate rather than hinder the
cause of justice. 61 However, it is safe to also argue that neither the strength of
evidence nor the utility of discretion permits coercion in criminal justice.
Whenever defendants are coerced to plead guilty, the process becomes prone to
inaccuracies that almost unavoidably result in wrongful convictions. 62 Perhaps
some may argue that the law often puts anti-duress mechanisms in place, but even
that has been found not to be sufficient in protecting a defendant whose fate is
decided behind closed doors. When coercion occurs, the threatened party is
unfortunately limited to only two choices: (1) surrender to the threat, or (2) refuse to
surrender and suffer the threatened adverse outcome. 63 Where the threat is
legitimate, it cannot be ignored without consequences. If the threat were to be
ignored, it would be in the interest of the threatening party to carry out the threat,
rather than retreat.64 Scholars have also found that in plea bargaining, prosecutors
are likely to exaggerate the strength of evidence in order to secure the accused
persons plea. 65 The threat against the defendant becomes even more lethal
because the leniency, which was promised, is the only reliable means to avoid

58
Gersham in BG Stittand, RH Chaires Plea Bargaining: Ethical Issues and Emerging Perspectives [1992]. The Justice
Professional, 7(2), p 72.
59
Y Ma Prosecutorial Discretion and Plea Bargaining in the United States, France, Germany, and Italy: A Comparative
Perspective [2002]. International Criminal Justice Review, 12(1), p 22.
60
JH Langbein Land without Plea Bargaining: How the Germans Do It [1979]. Michigan Law Review, 78(2), p 204.
61
Y Ma Prosecutorial Discretion and Plea Bargaining in the United States, France, Germany, and Italy: A Comparative
Perspective [2002]. International Criminal Justice Review, 12(1), p 22.
62
O Bar-Gill and O Ben-Shahar Credible coercion. [2004]. Tex L. Rev., 83, p 1.
63
Ibid.
64
Ibid.
65
JI Turner Judicial Participation in Plea Negotiations: A Comparative View [2006]. The American Journal of Comparative
Law, 54(1), p 206.
20


punitive measures and he/she is therefore left with no option other than to accept
guilt.66 A major implication of this is that the prosecutor and the judge become
agents of the powerful state, whose task is to obtain the defendants plea and
ensure his/her conviction.
These unethical and often misleading conducts have made plea bargaining work
effectively, especially on the risk-averse defendant, guilty or innocent.67 Vogler and
Jokhadze, however, casted doubt on this notion, contending that the empirical
evidence to support the argument that innocent, risk-averse defendants are often
coerced; especially by their representatives to plead guilty, is notoriously
unreliable.68 What disrupts the separation of the guilty from the innocent is not
only a flaw in plea bargaining but also a flaw common in trials.69 Others argue that,
when a prosecutor threatens to go to trial, he is only exercising a lawful power in
an effort to seek a legislatively authorised outcome.70 Yet, one cannot rule out as
problematic any system in which the prosecutor or the judge act as a party eager to
convict. However strong may be his belief of the persons guilt, justice must be
done.71
A recent work by Rakoff et al. indicates how the situation of innocent defendants
pleading guilty is widespread, mostly through plea bargaining. Their evidence has
shown that about 10% of innocent people in rape and murder cases plead guilty,
presumably due to fear of capital punishment. 72 They further cited similar
examples from the records of the National Registry of Exonerations, 73 which
indicates that out of 1,428 legally acknowledged exonerations that have occurred
since 1989 involving the full range of felony charges, 151 (or, again, about 10

66
MM OHear Plea Bargaining and Procedural Justice [2007]. Georgia Law Review, 42, p 425.
67
O Bar-Gill and O Ben-Shahar Credible coercion [2004]. Tex L. Rev., 83, p 1.
68
R Vogler and G Jokhadze Plea Agreements in the Georgian Criminal Justice System: A Utilitarian Perspective. A Report
Prepared for the Georgian Ministry of Justice for Review and Consideration by the Georgian and International Rule of Law
[2011]. Tbilisi, Georgia, p 28
69
FH Easterbrook Plea bargaining as compromise [1992]. The Yale Law Journal, 101(8), p 1971.
70
S Bibas Bringing moral values into a flawed plea bargaining system [2003] Cornell Law Review, 88. P 1427.
71
State v ONeil, 189 Wis. 259 (1926).
72
JS Rakoff, H Daumier and AC Case Why Innocent People Plead Guilty [2014]. New York Review of Books, 61(18), p 7.
73
This is a joint project of Michigan Law School and Northwestern Law School in the United States of America.
21


percent) involved false guilty pleas.74 Similar findings by Gross75 also revealed that
in allegations for offences that attract the death penalty, prosecutors use the threat
of capital punishment to secure a guilty plea. Ehrhard also showed evidence to
suggest that the death penalty is a strong incentive that puts the prosecutor in a
unique position of power and it is often used to secure guilty pleas.76 Although
capital punishment is not common in all jurisdictions, the findings suggest how
harsh penalties are used to compel accused persons into pleading guilty. In the
end, it is bound to result in inappropriate situations where the innocent defendant
pleads guilty. This situation becomes even more complicated owing to the
empirical studies that suggest defendants who seek trial may be acquitted while
those who plead guilty forfeit this possibility. 77 Hence the argument that plea
bargaining is a process that flourishes in judicial blindness. Nevertheless, plea
bargaining has overtime proven to be a process that has the tendency of dealing
with accused persons unequally.
CONCLUSION
The best universal practice in criminal justice is that which is shared on the notion
of procedural justice. This becomes increasingly relevant as plea bargaining
succinctly becomes an acceptable norm, often displacing the traditional concept of
free and open adjudication before a neutral judge. Promoting a system that inhibits
some of the lofty values of constitutional criminal justice such as transparency,
consistency and freedom from coercion is a dangerous trend. Despite the
incentives it provides, it is also important to balance these benefits with the aim of
ensuring justice at all costs.

74
Ibid
75
SR Gross "The Risks of Death: Why Erroneous Convictions Are Common in Capital Cases," [1996]. Buffalo Law Review 44.
469.
76
S Ehrhard Plea Bargaining and the Death Penalty: An Exploratory Study [2008]. Justice System Journal, 29(3), p 316.
77
GD LaFree Adversarial and Nonadversarial Justice: A Comparison of Guilty Pleas and Trials [1985]. Criminology, 23(2), p
291.
22


Most problematic is the situation of accommodating bureaucratic and corporative

ethos between officials to place organisational interest on the same pedestal with
the interests of justice. This reconfiguration of ideals of procedural justice is
undoubtedly leading to a fluid contour in justice and penology that exposes how
the debate on the relationship between law and economics is lacking in
perspective. It also highlights questions on the essence and significance of some
far-reaching reforms in contemporary criminal justice such as preventive
detention, offender profiling and other questionable characters that are invading
the field of crime and penology.
The field of criminal justice is witnessing an emerging conflict between the

traditional principles of fair trial and that of negotiation. The implication of this is
the way practitioners give prevailing attention to resource management, leading to
controversy in the way pleas are secured and inconsistency in sentencing practices.
Incidentally, the appealing incentives of certainty and finality that plea bargaining
presents, makes it very unlikely that officials will be completely deterred from
acting obnoxiously in order to secure a guilty plea. These overarching problems
call for a rethink among scholars and practitioners on how to ensure that equality
and fairness will always remain a cornerstone and bastion in the development and
legitimacy of legal reforms.
23

LEGAL PHILOSOPHICAL CONSIDERATIONS OF

PROSTITUTION: A ROADMAP TO UNDERSTANDING DIVERSE
LEGAL APPROACHES TO PROSTITUTION IN EUROPE
Alicia Danielsson*
INTRODUCTION
The study of legal theory and philosophy entails conducting philosophical and
scientific examinations of law and justice as a social phenomenon.1 This may
include engaging with theories and studies about law and justice with potential
elements of speculations on the basis of ideas found in numerous disciplines, such
as law, sociology, history, political science, philosophy, economics and natural
sciences. The aim is to elucidate the character and nature of law, particularly in
relation to society.2 In practice, this takes shape in seeking to answer an indefinite
range of questions about law and justice, which are not only interesting in
themselves but also offer unique insights and an in-depth understanding of legal
provisions and concepts in relation to their context.3
Due to the nature and extent of legal theory, it is impossible to consider every
possible question which could be raised on a subject matter, especially in subject
areas, which may be perceived as controversial, such as laws on prostitution. The
vast amount of academic literature available on the subject covers a broad range of
different concepts and ideas. This can make it difficult to piece together an initial
overview of the core theoretical theories and basic notions before conducting a
more in-depth analysis.
Due to the vast range of legal theories available on the subject matter, it will only
be possible to discuss a carefully selected number. The intention of this paper is to

1
Suri Ratnapala, Jurisprudence (Cambridge University Press 2013) 3.
2
ibid.
3
Richard A Posner, The Problems Of Jurisprudence (Harvard University Press 1990) 1; 220.
2017, A. Danielsson
* Associate Lecturer in Law at The University of Bolton 24


provide a point of reference when conducting legal theoretical research in the area
of prostitution laws through a Eurocentric lens.
Within the study of legal theories, there are two predominant species of
jurisprudence identified in academic literature, namely, analytical and normative
jurisprudence.4 Analytical jurisprudence is the umbrella term for theories seeking
to answer questions relating to any major concepts of law as well as general
questions of the meaning of law.5 Normative jurisprudence covers legal theoretical
ideas that focus on questions relating to the moral dimensions of law.6
Legal Theory classifications are merely labels of convenience. When researching

specific theories, they provide valuable navigational aids. However, it is important
not to view each theory as a true category. Even within the distinction between
analytical and normative jurisprudence, one will find analytical elements in
normative jurisprudence and normative elements in analytical jurisprudence.7
Thus, even in this Roadmap certain theorists may appear in several
classifications.
LAYING OUT THE LEGAL ENVIRONMENT AND SOME KEY LEGAL

THEORETICAL CONCERNS
According to the Council of Europe Resolution 1579 (2007), the approaches
adopted in the 47 member states of the Council of Europe vary widely. It is noted
that three predominant approaches can be defined: prohibitionist, regulationist
and abolitionist.8

4
See for example: Dennis M Patterson, A Companion To Philosophy Of Law And Legal Theory (Wiley-Blackwell 2010) 9; 531;
William Twining, General Jurisprudence (Cambridge University Press 2009) 226; Antony Duff and Stuart P Green,
Philosophical Foundations Of Criminal Law (Oxford University Press 2011) Chapter 1; Scott Shapiro, Legality (Harvard
University Press 2011) 2.
5
HLA Hart, The Concept Of Law (Oxford University Press 2012) xliv.
6
Howard Davies and David Holdcroft, Jurisprudence (Butterworths 1991) v; Suri Ratnapala, Jurisprudence (Cambridge
University Press 2013) 3.
7
ibid.
8
Council of Europe, Parliamentary Assembly, 'Resolution 1579 (2007) Prostitution Which Stance To Take?,' Assembly
debate on 4 October 2007 (35th Sitting) s.4 et seq.

25

In the regulation of sexual services, prohibitionist approaches are generally

categorised as targeting both the sale as well as the purchase of these services
within criminalisation. It can also include the categorical prohibition of behaviour,
which is closely related to the selling or purchasing of sexual services, such as
street solicitation, or the running of an agency or a commercial sex business.9
Legal theoretical questions that can be found in the foreground of prohibitionist

approaches may include what the purpose is of criminal laws, what the purpose of
criminal sanctions is, whether prostitution could be considered a victimless crime,
or whether there are elements of harm which need to be addressed by criminal law
means.10 A prohibitionist rationale may view society as a whole as the victim of
prostitution and thus favour an approach that protects public order, society, and
public morals through the criminalisation of prostitution.
Abolitionism describes approaches in which a set of policies do not

unconditionally criminalise acts of prostitution per se, nor does it unconditionally
criminalise activities that are closely related to prostitution, such as solicitation or
brothel keeping. However, it may categorically criminalise one side of the
prostitution interaction, often the procurement, in an attempt to eliminate the
entire transaction.11
The legal theoretical concerns found in the forefront of abolitionist approaches

pose questions regarding the social order within society and the concept of
victim. In this sense, an abolitionist approach may be founded on the

9
Peter De Marneffe, Liberalism And Prostitution (Oxford University Press 2010) 16; Phil Hubbard, Roger Matthews and Jane
Scoular, 'Regulating Sex Work In The EU: Prostitute Women And The New Spaces Of Exclusion' (2008) 15 Gender, Place &
Culture.
10
See for example: HC Deb 13 October 2015 vol 600 cc 58-65WH; Joel Feinberg, Harmless Wrongdoing (Oxford University
Press 1988); M Kaspersson, 'Book Review: Criminal Woman, The Prostitute, And The Normal Woman' (2005) 15
International Criminal Justice Review; Dempsey, Michelle Madden. "Rethinking Wolfenden: Prostitute-use, criminal law,
and remote Harm." Criminal Law Review (2005): 444-455.
11
Peter De Marneffe, Liberalism And Prostitution (Oxford University Press 2010) 12, 29; Joyce Outshoorn, The Politics Of
Prostitution (Cambridge University Press 2004) 8, see also: Geetanjali Gangoli and Nicole Westmarland, International
Approaches To Prostitution (Policy Press 2006) 175; K Thorlby, 'May-Len Skilbrei And Charlotta Holmstrom, Prostitution
Policy In The Nordic Region: Ambiguous Sympathies.' (2015) 18 Sexualities.
26


philosophical notion that the people selling the services in prostitution constitute
the victims, and as such, need to be protected from criminalisation. However, on
the other hand, it is still believed that the social order still requires prostitution to
be tackled by criminal law means. Thus, the criminal laws seek to criminalise the
procurement rather than the sale.12
Regulationism is a term used to describe a set of policies, which criminalises

neither the sale or purchase of prostitution services nor any activities viewed as
being closely related. However, this approach will impose certain restrictions on
these activities, which differentiate prostitution from other transactions or
businesses. Examples of this may include age restrictions or health regulations.13
These imposed restrictions constitute the element, which differentiates
regulationism from full decriminalisation. Full decriminalisation may be described
as a set of policies that incorporate normalisation or laissez-faire.14
Legal theoretical approaches to regulationism often follow the ideas of libertarian

paternalism. The underlying objective is to affect peoples behaviour while at the
same time, respecting their freedom of choice. This way, regulationists seek to
direct peoples choices towards welfare-promoting behaviours without
disregarding their freedom of choice15 The key legal theoretical questions seek to
investigate what harm is caused by decriminalisation in contrast to criminalisation.
The answers to these questions often reflect the idea that although prostitution
may attract certain elements of harm, the harm caused by criminalisation will
outweigh the harm caused by liberalisation, with paternalistic elements specifically
targeting the areas of harm wherever they come about.16

12
Gayle Letherby, Sex As Crime? (Willan 2008) 385; Jane Scoular, The Subject Of Prostitution (Taylor and Francis 2009) 47.
13
Peter De Marneffe, Liberalism And Prostitution (Oxford University Press 2010) 29; Brigit C A Toebes, The Right To Health. A
Multi-Country Study Of Law, Policy And Practice; Melissa Hope Ditmore, Encyclopedia Of Prostitution And Sex Work (Greenwood
Press 2006) 372.
14
ibid.
15
Cass R Sunstein and Richard H Thaler, 'Libertarian Paternalism Is Not An Oxymoron' SSRN Electronic Journal,
University of Chicago Public Law & Legal Theory Working Paper No. 43, 2003.
16
Joanna Phoenix, Regulating Sex For Sale (Policy Press 2009) 14.

27

EXAMINATION FRAMEWORK
Due to the vast amount of legal theories, it has been important to develop an
examination structure of the existing fundamental ideas of the various legal
theories, in order to enable a targeted investigation of legal approaches to
prostitution and the underlying philosophies. Thus, a so-called roadmap has
been developed that will direct initial research into legal theoretical concepts and
underlying ideas of prostitution laws in order to start ones research on the right
path. The aim is to provide a guided overview of some of the most relevant
concepts of jurisprudence that will enhance efficiency, especially for researchers
who are new to the area of legal theory in relation to prostitution laws. The starting
point consists of the questions What is the nature of law? and How are laws
determined? This will provide the relevant information to determine whether the
research will be directed towards the legal umbrella-theories of Natural Law, Legal
Positivism, Critical Legal Studies and Legal Realism. In the following roadmap,
the paths down each of these overarching categories will be addressed in turn (See:
Figure 1).
28


Figure 1: A Roadmap to
European Jurisprudence
What is the nature of law? How are laws determined?
Legal Critical Legal Legal Realism

Natural Law Positivism Studies
Critical Race Feminist Legal American Scandinavian

Consequentialism Public Reason Theory Theory Realism Realism
Radical
Utilitarianism General Feminism
Critical Race
Theory
Teleology Liberal
Feminism
Virtue Deontology
Jurisprudence Post-
Colonialism
Postmodern
Feminism
Difference
Theory
EXPLORING THE LEGAL THEORETICAL VIEWS ON PROSTITUTION

In accordance with the examination framework depicted above, the first questions
to ask in determining the legal theoretical classification of prostitution laws are
how these fit into ideas of the way the nature of law is regarded and how laws are
thought to be determined. These initial questions will point towards Natural Law,
Legal Positivism, Critical Legal Studies or Legal Realism. The following will
address each of these classifications individually in relation to their theoretical
concepts of morality, sexuality, and law and the way these apply to prostitution and
how the interpretations fit into the most prominent sub-classifications.
A. NATURAL LAW
According to natural law theory, laws are derived from the nature of morality and
are, thus, natural moral laws. Accordingly, many Natural law theorists support the

29

premise of lex injusta est non lex (Law which is not just is not law).17 In other words,
this means that laws, which contradict a moral sense of justice, are considered
invalid.

Over the millennia, Natural law has developed from being based on the idea of the
existence of divine laws, over canon laws, towards the idea of laws being inherently
based on the fundamental moral foundations of human nature and in more recent
times from human biology. Despite the developments in the ideas of where Natural
laws are derived from, some essential aspects remain consistent, namely, that laws
are already omnipresent and need to be uncovered by legal scholars.

The following will consider some of the main ideas in relation to sex, morality, and
prostitution from the key Natural law thinkers in jurisprudential history.
In Platos Symposium,18 he focussed on the passion to possess the good and

beautiful, which he referred to as eros.19 Within his writings, one can recognise the
same theoretical underpinnings which were later reflected in the Christians
antagonism to sexuality. One example can be found in Platos distinction between
vulgar and spiritual eros. The latter, according to Plato, is free from lust,
wantonness, or lewdness,20 and has virtue as a central concern between mentally
beautiful lovers.21 In Phaedrus, Socrates explains that genuine lovers will only
engage in sexual intercourse when they are overcome with akrasia (weakness of the
will) or when they have been disinhibited due to having had alcohol to drink.22
Plato was concerned about the links between sexuality and power and autonomy.23
A particular concern in this regard was the influence sexual pleasure had on a

17
Joel Feinberg, Problems At The Roots Of Law (Oxford University Press 2003) 6; J S Russell, 'Trial By Slogan: Natural Law
And Lex Iniusta Non Est Lex' (2000) 19 Law and Philosophy.
18
Plato and others, The Symposium Of Plato (University of Massachusetts Press 1970).
19
Alan Soble, 'A History Of Erotic Philosophy' (2009) 46 Journal of Sex Research, 104-120, 106; Plato and others, The
Symposium Of Plato (University of Massachusetts Press 1970).
20
Plato and others, The Symposium Of Plato (University of Massachusetts Press 1970) 181c181d, 185c, 209b210c.
21
Plato, Republic (G M Grube, Trans.) (Indianapolis: Hackett, 1992) 403a 403b.
22
Plato, Phaedrus (A Nehamas & P Woodruff, Trans.) (Indianapolis: Hackett, 1995) 256b256c.
23
A W Price, Love And Friendship In Plato And Aristotle (Oxford University Press 1997); Alan Soble, Sexual Investigations (New
York University Press 1996) 146148.
30


human beings actions and on their lives in general. Accordingly, people became
slaves to their passion and, in turn, subservient towards others. This could then
threaten freedom and a happy life.24 Plato lamented the dominant governing
influence. He viewed sexual pleasure as having an absolute sovereignty over the
actions a person takes in life.25
A few decades later, Aristotle26 confirmed these thoughts in relation to philia

(friendship-love).27 Accordingly, genuine friendships sought the good in one
another and improved the others virtue. Sexual desire, in Aristotles view, was
based on an appetite, similar to the form of appetite one has for food and drink.
This way of thinking was supported by Augustine and Kant in later centuries, who
both agreed that sexual appetite was analogous to hunger and thirst and
constituted a form of animal appetite.28 However, Aristotles ethics of moderation
prescribed that the virtue of temperance required these appetites to be
controlled.29 This was based on the idea that the satisfying of these appetites was an
attribute of animals rather than rational beings. These ideas have later been
reflected in the virtue of chastity found in Christianity30
According to these Aristotelian natural law doctrines, it is logical to deduct from

the virtue based ideas, that prostitution would be regarded as morally wrong.
However, there are indications that Aristotle may not have thought prostitution to
be as objectionable as one would first expect. Prostitution was a widespread
phenomenon in Ancient Athens and included several forms, such as street
prostitution, which similarly to today, constituted the lower end of the prostitution
hierarchy, from young boys of poorer families through to courtesans who enjoyed a

24
Plato, Symposium (S Groden, Trans.) (Amherst: University of Massachusetts Press. 1970).
25
Alan Soble, 'A History Of Erotic Philosophy' (2009) 46 Journal of Sex Research 46(2-3), 104-120, 107.
26
Aristotle, Nicomachean Ethics (T Irwin, Trans.) (Indianapolis: Hackett, 1985).
27
ibid.
28
29
P T Geach, The Virtues (Cambridge University Press 1977) 131 et seq.; Raja Halwani, Sexual temperance and intemperance,
in Raja Halwani, Sex And Ethics (Palgrave Macmillan 2007).
30
Alan Soble, 'A History Of Erotic Philosophy' (2009) 46 Journal of Sex Research 46 (2-3), 104-120, 107.

31

higher status in the prostitution hierarchy.31 Thus, according to Aristotle, this

phenomenon was reconcilable with social morals due to the fact that he believed
that poorer people were not as capable of developing to the same level of mental
capacity as members of the Athenian upper class.32 Furthermore, in line with
Aristotles moral conception of only indulging in the pleasures of the flesh in
33
moderation, it could be assumed that if, for instance, a person only purchased a
prostitutes services on rare occasions, this may not fall within the realms of what
Aristotle thought was a moral vice.34
Augustine35 took Platos and Aristotles moral ideas further in relation to sexual
intercourse in marriage and expressed accordingly that when carried out merely for
the purpose of pleasure the wife would constitute the husbands harlot and the
husband would classify as his wifes adulterous lover.36 The foundation for this
thinking needs to be sought in the Christian schools of thought of the 4th and 5th
centuries.37 Jerome, 4th century Christian philosopher, argued, for instance, that
Adam and Eve were virgins while in Eden, yet with their first sin they were cast
out of Paradise and immediately married.38 In this sense, sex was not considered
to be part of Gods initial plan for human beings, and thus the ideal would be for
people to abstain.39 Although Augustine was not as radical in his thoughts, he
supported the idea that sex prior to the fall was not lustful. In his view, Gods

31
E N Yankah, An (In)decent Proposition: Prostitution, Immorality and Decriminalisation (2010) University of Illinois -
College of Law, Available at: <http://works.bepress.com/ekow_yankah/2> accessed: 26th July, 2015.
32
Aristotle, Politica, supra note 70, Bk. I, Ch. IV-VIII, Bk. III, Ch. IV; Yankah, E., N., An (In)decent Proposition: Prostitution,
Immorality and Decriminalisation (2010) University of Illinois, College of Law, Available at:
<http://works.bepress.com/ekow_yankah/2> accessed: 26th July, 2015.
33
Aristotle, Nicomachean Ethics, in Aristotle and others, The Basic Works Of Aristotle (Random House 1941) at Bk. III, Ch. X-XI.
34
Martha C Nussbaum, 'Objectification, Philosophy And Public Affairs' 24:4 (1998) reprinted in
Alan Soble, The Philosophy Of Sex (Rowman & Littlefield 2002) 394-396; B Russell, Marriage And Morals (1958) 121-122 and I
Primoratz, 'Whats Wrong with Prostitution?' 451-453 in Alan Soble, The Philosophy Of Sex (Rowman & Littlefield 2002) 462-
466.
35
Augustine, On Marriage and Concupiscence. In T Edinburgh & T Clark (eds), Augustine, Marcus Dods and Peter Holmes,
The Works Of Aurelius Augustine, Bishop Of Hippo (T & T Clark 1874).
36
ibid.
37
See: Elizabeth A Clark, ' Adam's Only Companion : Augustine And The Early Christian Debate On Marriage' (1986) 21
Recherches Augustiniennes et Patristiques, 21, 139162; Gilles Quispel and Elaine Pagels, 'Adam, Eve And The Serpent'
(1989) 43 Vigiliae Christianae; Uta Ranke-Heinemann, Eunuchs for the Kingdom of Heaven: Women, sexuality and the
Catholic church. (New York: Penguin, 1990).
38
St Jerome, printed in Augustine, Saint Bishop of Hippo.; John Chrysostom, Saint; Philip Schaff; Henry Wallace, Nicene
and post-Nicene fathers. Second series, Volume VI Jerome: Letters and Select Works (New York, NY : Cosimo Classics,
2007) 359.
39
Soble, A, A History of Erotic Philosophy (2004) Drexel University, Journal of Sex Research 46(2-3), 104-120, 108.
32


original purpose for sex was solely for procreation.40 This is also the underlying
principle applied in Augustines disapprobation of contraception. Accordingly, he
even went as far as to describe practices such as blocking conception or aborting
foetuses as criminal conduct as people engaged in this kind of conduct were
coming together by abominable debauchery.41
It appears that in the almost 1000 years that followed, the attitudes towards
sexuality became slightly less negative. Accordingly, in the mid-13th century, the
theologian St. Thomas Aquinas developed his Natural Law theory of sexuality
within his Summa Theologiae.42 This work later became the authoritative foundation
of the Catholic teachings. Here, he explained that coitus resulted from a God-given
natural inclination and thus, the sexual organs would be fulfilling their natural
purpose during sexual intercourse.43 According to Aquinas, sexual pleasure had to
be considered as a good thing, as it had been created by God. Yet, this type of
pleasure had its rightful purpose and use, in the same way as everything else
created by God. Hence, God planned for sexual pleasure in sexual acts as a
contribution to His continuous work of creation. In this sense, God intended for
human beings to have a natural inclination for sexual intercourse to ensure they
continued to obey His command to be fruitful. Thus, sexual pleasure in itself was
not considered a sin, as long as this was conducted in conjugal sexual acts which
were intended to be procreative.44 Aquinas derived his judgements about sexual
activity from his Natural Law ethics.45 In his line of arguments, he asserted that any
unnatural vice46 consisted the gravest of sins which he perceived to be worse than
adultery or rape. The reason for this idea was that these unnatural vices were a

40
Augustine, Gerald G Walsh and Grace Monahan, The City Of God (1st edn, Catholic University of America Press 2008) Book
14, Chapter 24, 402.
41
ibid 109; Augustine, On Marriage and Concupiscence. In T. Edinburgh & T. Clark (Eds.), The works of Aurelius Augustine,
Bishop of Hippo (Vol. 12, pp. 93202). (1874) 93 - 202.
42
Thomas Aquinas, Summa Theologiae (Vols. 160. Cambridge, England: Blackfriars, 1964).
43
Thomas Aquinas, On the Truth of the Catholic Faith: Summa contra gentiles (book III, pt. 2; V Bourke, trans.) (Garden City,
NY: Image Books. 1956) (Original work published 12581264).
44
ibid.
45
Thomas Aquinas, Summa Theologiae (Vols. 160). Cambridge, England: Blackfriars, 1964) (Original work published 1265
1273), IIa-IIae, ques. 154, arts. 112); Soble, A, 'A History of Erotic Philosophy' (2004) Drexel University, Journal of Sex
Research 46(2-3), 104-120, 110.
46
NB Self-abuse, Bestiality, Sodomy or failure to use the proper organs in the natural style of intercourse.

33

direct affront to God and His intentions, whereas crimes such as rape or
adultery merely violated the developed plan of living according to reason which
was a creation of man.47
Approximately half a millennium later, in the 1700s, David Hume and Immanuel
Kant contributed to the Natural law thoughts on sexual desire, love, and morality in
a secular form. Hume claimed that love developed through a connection based on
a persons perception of beauty, bodily appetite and compassion which resulted in
people becoming inseparable.48 He explained that the latter two aspects of amorous
passion were too remote [by their natures] to unite easily.49 Kant expressed the
idea that true human love was merely goodwill, affection, and the promotion of the
happiness of others and finding joy in their happiness.50 In his reference to the
benevolence component of Humes concept of amorous passion, Kant asserts that
this component is too different from sexual desire for these two to be able to be
joined. The reason for this is that in Kants view, sexual desire is nothing more
than an appetite towards a person, which in essence objectifies him or her.51 In his
opinion, sexual desire and benevolence would contradict one another, as the
former would result in all motives of moral relationships ceasing to function and
vice versa, benevolence would deter a person from carnal enjoyment.52 This
objectification of another person for sexual intercourse, according to Kant, could
only be overcome in marriage.53 Similarly to Aquinas, Kant thought that engaging
in crimina carnis contra naturam, such as masturbation, constituted, in essence, the
treatment of oneself as an object and, thus, degraded human nature to a level
below that of animal nature and [made] man unworthy of his humanity.54

47
48
David Hume, A Treatise of Human Nature (Oxford, England: Oxford University Press, 2000) Book II, pt. ii, chap. 11.
49
ibid.
50
Immanuel Kant, Peter Heath and J B Schneewind, Lectures On Ethics (Cambridge University Press 1997) Ak 27:384.
51
ibid.
52
Immanuel Kant and Mary J Gregor, The Metaphysics Of Morals (Cambridge University Press 1996) Ak 6:426.
53
Immanuel Kant, Peter Heath and J B Schneewind, Lectures On Ethics (Cambridge University Press 1997); B Herman, Could
it be worth thinking about Kant on sex and marriage? (1993) In Karen Jones, Louise Antony and Charlotte Witt, 'A Mind Of
One's Own: Feminist Essays On Reason And Objectivity.' (1995) 104 The Philosophical Review; Alan Soble, Sexual use and
what to do about it: internalist and externalist sexual ethics. In Alan Soble and Nicholas Power, The Philosophy Of Sex
(Lanham, MD: Rowman & Littlefield, Publishers, 2008) 259288.
54
ibid.
34


Kants philosophical approach has been incorporated into several contemporary

philosophies. In particular, the feminist theorists have resorted Kants critique of
sexual objectification, especially in evaluating subject matters such as rape,
prostitution, sexual harassment or pornography.55 In contrast to the liberal ideas of
consent, Kant believed that the objectification of another human being was too
immoral as to allow for it to be justified with consent.56
One of the first philosophers to develop the Natural law ideas regarding sex
towards the scientific realm was the German philosopher, Arthur Schopenhauer.
Accordingly, he asserted that the beauty of an object of ones sexual desire was the
way nature tricked men into believing that they sought to satisfy their erotic desires
for their own individual good. However, he argued that sexual intercourse, in fact,
only benefitted the survival of the species,57 and yet caused men to irrationally give
up their fortune and freedom in pursuit of their erotic goals.58
(I) DETERMINING THE NECESSITY OF PROSTITUTION LAW UNDER

NATURAL LAW IDEAS: VIRTUE JURISPRUDENCE OR DEONTOLOGY
As discussed in the previous point, Natural law believes that ideals of justice and
laws are pre-established by, for example, nature, or a higher power. Virtue
jurisprudence is a sub-category of Natural Law that believes that the purpose of
laws is to promote virtuous behaviour in a given society.59 Thus, laws criminalising
prostitution are necessary to promote the development of the virtuous characters of
citizens. Established above, key supporters of these ideas can be found in Plato,
Aristotle and St. Thomas Aquinas.

55
Estes, Y., Prostitution: A subjective position. In Alan Soble & N Nicholas Power (Eds.), Philosophy of sex (Lanham, MD:
Rowman & Littlefield Publishers, 2008) 353365; Martha Craven Nussbaum, Sex & Social Justice (Oxford University Press
1999).
56
57
ibid.
58
Arthur Schopenhauer, The World As Will And Representation, Vol. 2 (Dover Publications 2012) 532, 550.
59
Colin Patrick Farrelly and Lawrence Solum, Virtue Jurisprudence (Palgrave Macmillan 2008) 20; Denise Meyerson,
Understanding Jurisprudence (Routledge-Cavendish 2007) 3.

35

Legal Deontologists believe that actions are morally wrong, regardless of the
consequences. According to Rawls, these moral intuitions, which vary between
individuals, can be determined through a process he describes as reflective
equilibrium.60 Accordingly, the collective of raw moral intuitions may be ordered
in general principles, which could unify the collective of judgments in certain
cases.61
Kant, following a deontological ideology, thought that the central idea of morality
was found in duty. He based this ideology on the idea of a good will. Accordingly,
"nothing can possibly be conceived in the world or out of it that can be called good
without qualification except a good will."62 Good will, in this sense, was seen to be
a will, which has the objective of achieving good rather than merely being based on
desire and inclination.63
As already discussed under the umbrella term of Natural Law, Kantian Deontology,
as well as Aristotelian virtue-based theories, regarded prostitution as a moral harm.
However, this in itself does not necessarily mean that the law should prohibit it.64
Instead of determining the self-inflicted harm as resulting from the indulgence in

base pleasures, Kant argued that the harm was caused due to a breach of ones
moral duties and the effects this had on ones dignity. However, despite Kant
believing that prostitution constituted a grave violation of a persons moral duties,
his theories in relation to autonomy are often used as a theoretical basis to claim
that the law cannot force people to be morally upright.65 In recent decades, there
has been a significance placed on Kantian ideas in prostitution discussions, which
make it advisable to conduct a more in depth contemporary analysis of his theories

60
Sren Holm and Monique F Jonas, Engaging The World (IOS Press 2004) 140 et seq.
61
John Rawls, A theory of Justice (Cambridge, Mass.: Belknap Press of Harvard University Press, 1999).
62
Immanuel Kant, On The Metaphysics Of Morals And Ethics (A & D Pub 2008) 10.
63
ibid.
64
Yankah, E., N., An (In)decent Proposition: Prostitution, Immorality and Decriminalisation (2010) University of Illinois,
College of Law, 30, Available at: <http://works.bepress.com/ekow_yankah/2> accessed: 26th July, 2015.
65
ibid.
36


in relation to prostitution at an early stage of jurisprudential research in

prostitution laws.
B. POSITIVISM
Maybe one of the most significant and most often mentioned forms of analytical
jurisprudence is Legal Positivism,66 which also constitutes the counterpart to
Natural Law theories. The reason for this is that they constitute opposites in
various areas of their concepts. Natural law, for instance, is considered a normative
legal theory. In this sense, it is predominantly focussed on what law ought to be.
Legal Positivism, on the other hand, looks at laws in order to determine what law
is, what the laws are, and their effects. In essence, one could generalise positive
legal theories as concerning facts whereas normative legal theories as being about
values.67
In essence, positive legal theories can be categorised as dealing with three different
aspects of legal analysis. These are doctrinal or descriptive theories, explanatory or
causal theories, and effects and predictive theories.68
When considering the above characteristics, it may be difficult to pinpoint the

exact point in time at which the positivist tradition began. In this sense, Hobbes's
theory of law includes certain positive characteristics. Furthermore, theorists such
as Jeremy Bentham or John Austin can clearly be placed within the realm of the
positivist tradition.69 In The Province of Jurisprudence Determined,70Austin
asserted that a given rule only constituted a law if it had been commanded by the
sovereign towards his or her subjects, and when the commands were supported by

66
Neil MacCormick and Ota Weinberger, An Institutional Theory Of Law (Springer Netherlands 1986) 124.
67
Joseph Raz, The Authority Of Law (Oxford University Press 2009) 135; Hans Kelsen, Pure Theory Of Law (University of
California Press 1978) 219; Enrico Pattaro and others, A Treatise Of Legal Philosophy And General Jurisprudence (Springer
Netherlands 2009) 221.
68
Roy Bhaskar, The Possibility Of Naturalism (New York: Routledge, 2014) 160.
69
Reidar Edvinsson, The Quest For The Description Of The Law (Springer-Verlag Berlin Heidelberg 2009) 5; Alexandra Rengel,
Privacy In The 21St Century (Martinus Nijhoff Publishers 2013) 17; Michael D Bayles, Hart's Legal Philosophy : an Examination
(Dordrecht : Springer Netherlands, 1992) 21.
70
J Austin, The Province Of Jurisprudence Determined (John Murray 1861).

37

threats of punishment. Accordingly, the rule of reason is a social rule, which

determines whether rules classify as rules or not.71
When looking at legal positivism, it is important to note that the scope of the
theory can cover a wide range of theorists with a wide range of different
approaches to the examination of laws. Often theorists who are classified as
positivists may also be placed in other categories of jurisprudence. Bentham, for
example, as mentioned above, is a clear representative of positive legal thoughts.72
Nevertheless, in line with the examination framework depicted above, Benthams
concepts fall within the sub-category of utilitarianism.
The key point when looking at prostitution laws from a positivist perspective is the
insignificance, if not neutrality, of moral concerns. Accordingly, normative
considerations are not necessary to determine the validity of laws.73 This is not to
say that morals may not be mentioned at all, as they may come about in the
investigation of jurisdictions, especially in the area of explanatory and causal
theories. However, in these cases, the moral concerns will merely be regarded as
facts without any normative value.
(I) DETERMINING WHY PROSTITUTION LAWS SHOULD BE MADE:

CONSEQUENTIALISM OR PUBLIC REASON
Consequentialism holds that the consequences of someones conduct or laws are
the decisive foundation for judgments in relation to the right or wrongness of a
specific conduct or provision. Hence, the consequentialist stance is that a morally
right act will produce an outcome society would describe as good. In essence,

71
Jeffrey Brand-Ballard, Philosophy Of Law (London : Bloomsbury, 2013) 7.
72
Xiaobo Zhai and Michael Quinn, Bentham's Theory Of Law And Public Opinion (Cambridge: Cambridge University Press,
2014) 144.
73
Kenneth Einar Himma, Law, morality, and legal positivism (Wiesbaden : F. Steiner Verlag, 2004)
38


consequentialists believe that "the ends justify the means.74 Accordingly, if a

specific consequence is morally significant enough, it will justify any method.75
Consequentialism feeds into the realm of paternalists and other representatives of

holistic understandings of societies who claim that human beings are intrinsically
social beings. Thus, due to the fact that people form complex, inseparable
relationships with other members within their societies, their individual actions
will automatically have an effect on the other members of their society or even on
the entire society as a whole.76 In terms of consequentialist thoughts, ethical
considerations play an important role. This is based on the assumptions that
certain behaviours may have negative effects on society. Consequently, it may be
necessary to restrict the liberties of individuals.77 In regard to prostitution, some
consequentialist ideas, whether relevant or not, are thought to include concerns
such as prostitution contributing to the spread of sexually transmitted diseases. A
hypothetical consequentialist consideration in this respect may involve legalising
prostitution in order to remove these kinds of adverse effects by including
provisions for regular health and safety check-ups.
One of the more significant sub-categories of Consequentialism is Utilitarianism.

As mentioned previously, one of the theorists whose ideas have been historically
attributed to utilitarianism is Jeremy Bentham. The ratio legis of Utilitarianism is
the goal of producing the Greatest Good, for the Greatest Number.78 In this
sense, legal rules should be adopted which will maximise utility.79
As aforementioned, Jeremy Bentham has been attributed to the Utilitarian School

of Legal Thought. Especially his thoughts about marriage, sexual relations and
morals touch on philosophical issues relating to prostitution and prostitution laws.

74
John Mizzoni, Ethics (Wiley-Blackwell 2010) 104.
75
Ted Lockhart, Moral Uncertainty And Its Consequences (Oxford University Press 2000) x.
76
Rohnn B Sanderson and Marc A Pugliese, Beyond Naivete (University Press of America 2012) 160.
77
ibid.
78
John Troyer, The Classical Utilitarians (Indianapolis: Hackett Pub Co., 2003) 92.
79
J. J Chambliss, Philosophy Of Education (Credo Reference Ltd 2008) 556.

39

Based on the fundamental idea that men and women are equal, Bentham designed
a marriage law draft which was based on utilitarianism. In this sense, one of his
conclusions was that questions concerning the relative value of spiritual or physical
love were to be placed in the realm of personal choice rather than constituting
decisions which a legislator could decide on for the species in general.80 In later
writings, he uses similar ideas in law and property. In his reasoning for a utilitarian
approach to marriage, he expressed in order to allow for marriage to solely be
governed by the individuals desire to gain pleasure and avoid pain.81 In contrast to
Kant, for instance, Bentham described sexual intercourse as a pleasure. Thus,
legislators needed to ensure that the quantity of this pleasure was as high as
possible within society. This needed to be proportionate to the level of pleasure
sexual intercourse entailed, which, according to Bentham, constituted the greatest
of all pleasures.82
It is of significance in relation to prostitution, that Bentham acknowledged in these

ideas, that this pleasure was not necessarily exclusive within legal marriage. In his
considerations of non-conform sexual intercourse, by which he meant sexual
intercourse outside of marriage for other reasons than procreation, he explained
that the harm caused from the enforcing of a marriage contract was palpable
enough.83 In his utilitarian view, men may commonly realise after having enjoyed
sex with one woman, that they could enjoy sex just as much with another woman.
This idea was not solely attributed to male views and he saw this to be equally true
for women. Accordingly, the sexual restraint which came with the enforcement of a
marriage contract was an inconvenience for both sexes.84 These thoughts have also
been expressed by others in a way which could be reconcilable with the concepts
of Natural Law. In this sense, Denis Diderot viewed a lifelong commitment to one

80
University College London, Bentham MS (UC) UC xxxii 103.
81
Mary Sokol, 'Jeremy Bentham On Love And Marriage: A Utilitarian Proposal For Short-Term Marriage' (2009) 30 The
Journal of Legal History, 1-21, 3; J. R Dinwiddy, Bentham (Oxford University Press 1989) 22. See Jeremy Bentham, Principles
of Morals and Legislation (Theclassics Us, 2013) 4259, 103104, 115116.
82
Journal of Legal History; University College London, Bentham MS (UC) UC xxxii 103.
83
University College London, Bentham MS (UC) UC lxxi 91.
84
ibid.
40


woman incompatible with the natural inconstancy of men85 and Rousseau,

although believing that marriage was advantageous for the human species as a
whole, did not believe that the permanent union between women and men was
dictated by nature.86
In regards to prostitution, Bentham recognised similar distinctions between forms

of prostitution as in a hierarchy as already mentioned in regards to Aristotle.87
Accordingly, he distinguished between public women, which referred to women
working in street prostitution, and which constituted the lower ranks within the
hierarchy, kept women, which described prostitutes who worked in brothels and
courtesans, who were considered to be at the top of the hierarchy.88 On the one
hand, Bentham was not against prostitution, and he did not condemn women,
especially poor women, who worked as prostitutes.89 In this sense, he was aware of
their economic situation and, thus, proposed solutions which were in line with
many feminist concepts found today, and which were far beyond the common
thinking of Benthams time. In this sense, Bentham regarded prostitution to be an
economic problem. He explained that poor women prostituted themselves due to
the fact that they were not able to find alternative employment to support
themselves. He stressed the disadvantageous position women were in when seeking
work in comparison to male labourers. In his opinion, this situation was intensified
by men carrying out jobs which could be described as more suitable for women,
such as sewing or tailoring, selling toys or running fashion shops.90 Benthams
proposed solution can be viewed as an early form of positive discrimination. In this

85
See: Blandine L. McLaughlin, Diderot and Women, in Samia I Spencer, French Women And The Age Of Enlightenment
(Indiana University Press 1984) 297.
86
Jean-Jacques Rousseau and Maurice Cranston, A Discourse On Inequality (Penguin Books 1984) 111.
87
See section on Natural Law.
88
Bridget Hill, Women Alone (Yale University Press 2001) 110; R. Probert, Chinese Whispers and Welsh Weddings(2005) 20
Continuity and Change 211228, 220; Sokol, M, Jeremy Bentham on Love and Marriage: A Utilitarian Proposal for Short-Term
Marriage (2009) The Journal of Legal History, Vol. 30, No. 1, April 2009, 1-21, 9.
89
Journal of Legal History, Vol. 30, No. 1, April 2009, 1-21.
90
ibid. 12; Jeremy Bentham, The Theory of Legislation, C.K. Ogden, ed., trans. from the French of
Etienne Dumont by Richard Hildreth, (New York, 1931) 385.

41

sense, he proposed to implement legislation which would exclude men from

working in these kinds of sectors in order to reserve them for women.91
In his utilitarian examinations of prostitution, Bentham saw the harm caused in the
areas of the potential transmission of venereal diseases92 and issues regarding the
paternity of illegitimate children. The latter point, in particular, was of a concern
for Bentham due to high rates of infanticide93 or the harsh exclusive provisions that
the common law placed on illegitimate children.94
In order to reduce these harms, Bentham proposed changes to the law in order to
allow for illegitimate children to gain legitimacy after the parents got married, and
to decriminalise infanticide for the protection of mothers.95 His reasoning for this
was the fact that infanticide constituted an inevitable impulse of self-preservation
at the expense of one being which does not feel the cost.96 Bentham argued that as
the offences of prostitution or infanticide could not be prevented, at least the harm
caused needed to be reduced.97 In terms of imposing sanctions on prostitution,
Bentham further, was of the opinion that the harms caused by prostitution were
sufficient moral sanction, which revoked any further need for political sanctions.98
One final point to be mentioned, which may be of significance in the examination

of the regulation of prostitution was Benthams ideas of welfare provisions as a
potential solution to reduce harm. In this sense, he proposed for particular
hospitals to act as a form of asylum for women, not only prostitutes but also abused

91
Jeremy Bentham; G W H Fletcher, Analysis of Jeremy Bentham's Theory of Legislation (Trubner & Co.: London, 1864) 72;
Charles F Bahmueller, The National Charity Company (University of California Press 1981) 16, Mary Sokol, 'Jeremy Bentham
On Love And Marriage: A Utilitarian Proposal For Short-Term Marriage' (2009) 30 The Journal of Legal History, Vol. 30, No.
1, April 2009, 1-21, 12.
92
University College London, Bentham MS (UC) UC lxxxxvi 197.
93
94
John Hamilton Baker, An Introduction To English Legal History (Butterworths 2002) 489490.
95
University College London, Bentham MS (UC) UC lxxxxvi 207; Mark Jackson, New-Born Child Murder (Manchester
University Press 1996) 67; University College London, Bentham MS (UC) UC lxxxxvi 214; See Bridget Hill, Women Alone
(Yale University Press 2001) 113115; Mark Jackson, New-Born Child Murder (Manchester University Press 1996) 3, Mary Sokol,
'Jeremy Bentham On Love And Marriage: A Utilitarian Proposal For Short-Term Marriage' (2009) 30 The Journal of Legal
History, Vol. 30, No. 1, April 2009, 1-21,10.
96
97
98
University College London, Bentham MS (UC) UC cli 163. UC lxxxxvi 197.
42


married women. He proposed these places to constitute a safe place of

concealment in which women could find protection.99
Teleology as a legal theory is very closely related to utilitarianism. The crucial

distinction is that, in relation to the purpose of prostitution laws, they should be
developed to achieve a specific goal, regardless of whether this achieves the
greatest good for the largest amount of people. John Stuart Mills ideas can be
classified as teleologist in nature. Similarly to Bentham, Mill also spoke up in
favour of a utilitarian approach to prostitution, however, with scepticism towards
intangible metaphysical moral duties.100
Mill believed that it should be for the individual to decide how he or she wished to
pursue achieving pleasure and the absence of pain.101 In his idea of please, he
believed that people would usually prefer pleasures associated with their higher
capabilities over purely lower pleasures.102 Here, a parallel can be drawn to
Aristotles idea of the highest eros being the pleasures of the mind.103
Mill classified prostitution as falling within the category of base pleasures.

Furthermore, he associates prostitution with a number of harms, which affect the
lives of both the prostitute and the client in a negative fashion. However, this does
not necessarily include the fact that the work of prostitution is unpleasant for
prostitutes, as work is seen to be unpleasant for most employees. Again, the
utilitarian perspective emerges here, in the argument that one undertakes
unpleasant work for remuneration, which allows for later enjoyment and pleasures.
However, according to Mill, the act of prostitution may impede a persons ability to
enjoy pleasures due to negative effects on a persons health or psychological

99
University College London, Bentham MS (UC) UC cliv 153, see also: Janet Semple, Bentham's Prison (Clarendon Press 1993)
290295; Robert Dingley, Proposals For Establishing A Public Place Of Reception For Penitent Prostitutes, &C (W Faden 1758); Roy
Porter, Enlightenment (Allen Lane/Penguin Press 2000) 373; University College London, Bentham MS (UC) UC cli 161.
100
John Stuart Mill, Jeremy Bentham and Alan Ryan, Utilitarianism And Other Essays (Penguin Books 1987) 272-276, 301-303.
101
ibid. 278.
102
ibid.
103
See section 4.1. on Natural Law.

43

fitness.104 In particular, this kind of emotional distress may affect a prostitutes

ability to form relationships with other human beings, either romantically or in
friendship.
A significant element of Mills ideas is the emotional damage he associated with

prostitution, which could negatively affect ones ability to form deep friendships or
supportive, intimate romantic relationships. 105
These harms are not only attributed to affect prostitutes. Clients are also seen to be
negatively affected in the sense. As prostitution does not involve the same
pleasures as sex in a caring and intimate relationship, the easy access to short-term
pleasures of prostitution may prevent clients from obtaining the greater long-term
pleasures derived from meaningful relationships.106
A further niche of positive jurisprudence to be mentioned at this point is the

relationship between public reason and the law. Some argue that the notion of
Public Reason first came about through Rawls work.107 However, there are
indications of it having been mentioned by earlier scholars. In this sense, Hobbes,
for instance, wrote:
In which question we are not every one, to make our own private
Reason, or Conscience, but the Publique Reason, that is, the reason
of God's Supreme Lieutenant, Judge; and indeed we have made him
Judge already, if wee have given him a Sovereign power, to doe all
that is necessary for our peace and defence.108
Here, it seems clear that Public Reason is used to describe the judgements of a
sovereign.

104
John Stuart Mill, Jeremy Bentham and Alan Ryan, Utilitarianism And Other Essays (Penguin Books 1987) 281 285; Peter De
Marneffe, Liberalism And Prostitution (Oxford University Press 2010) 13-15, 22-26. W Chapkis, Live Sex Acts (Routledge 1997) 1,
78.
105
ibid; Yankah, E., N., An (In)decent Proposition: Prostitution, Immorality and Decriminalisation (2010) University of
Illinois, College of Law, 20, Available at: <http://works.bepress.com/ekow_yankah/2> accessed 26 July 2015.
106
ibid. 21.
107
James M. Buchanan, 'Rawls On Justice As Fairness' (1972) 13 Public Choice, 123-128; John Horton, 'Rawls, Public Reason
And The Limits Of Liberal Justification' (2003) 2 Contemp Polit Theory, 5-23; Bruce W. Brower, 'The Limits Of Public
Reason' (1994) 91 The Journal of Philosophy.
108
Thomas Hobbes and others, Hobbes: "Leviathan" (Cambridge University Press 1996).
44


Furthermore, Rousseau explained in his Discourse on Political Economy,109 that a

father should not only trust his own personal reason in being a good father.
Instead;
[T]he only rule he should follow is the public reason, which is the
law. Hence nature has made quantities of good fathers, but it is
doubtful whether, since the world began, human wisdom has
produced ten men capable of governing their fellows.110
In contrast to Hobbes, Rousseau sees public reason as a form of general will, which
seeks to achieve the common good.
Kant also touched on the idea of Public Reason. Accordingly, he stated that;
The public use of man's reason must always be free, and it alone can
bring about enlightenment among men; the private use of reason may
quite often be very narrowly restricted, however, without undue
hinderance to the progress of enlightenment. But by the public use of
one's own reason I mean that use anyone may make of it as a man of
learning addressing the entire reading public. What I term the private
use of reason is that which a person may make of it in a particular
civil post or office with which he is entrusted.111
Accordingly, for Kant, public reason appears to be the reason people gain from one
another in the process of becoming enlightened. This appears to be in direct
contradiction to Hobbess use of the term.
As mentioned above, Rawls is often considered the founder of the modern concept
of Public Reason. This is based on his work Justice as Fairness: A restatement112, in
which he stated that;
[G}reat values fall under the idea of free public reason, and are
expressed in the guidelines for public inquiry and in the steps taken
to secure that such inquiry is free and public, as well as informed and
reasonable. These values include not only the appropriate use of the
fundamental concepts of judgment, inference, and evidence, but also
the virtues of reasonableness and fair-mindedness as shown in the

109
Jean-Jacques Rousseau and Jean-Jacques Rousseau, Discourse On Political Economy (Oxford University Press 1999).
110
Jean-Jacques Rousseau, Discourse on political economy; and, the social contract (Oxford: Oxford University Press, 1999) 5.
111
Immanuel Kant, Hans Reiss and H.B Nisbet, Political Writings (Cambridge University Press 1991) 55.
112
John Rawls and Erin Kelly, Justice As Fairness (Harvard University Press 2001).

45

adherence to the criteria and procedures of common sense

knowledge, and to the methods and conclusion of science when not
controversial, as well as respect for the precepts governing reasonable
political discussion.113
This definition indicates that Public Reason is defined as the reason of political
societies. This constitutes a way for a society to formulate its plans in addressing
and prioritising its objectives and putting these into action. Furthermore,
according to Rawls, Public Reason finds its limitations within the realms of
reasoning which could still appeal to the wider general public, such as presently
accepted general beliefs and forms of reasoning found in common sense, and the
methods of science when these are not controversial.114
C. CRITICAL LEGAL STUDIES

When initially conducting research into jurisprudence of prostitution laws, it
becomes clear that theoretical approaches falling under the umbrella term of
Critical Legal Studies form by far the most extensive category. Nevertheless, this
Roadmap to understanding prostitution laws in Europe, will only be able to
provide a superficial and selective glimpse of the available theoretical ideas.
Critical legal studies first emerged in the 1970s as a revolutionary legal theory,
which sought to reshape society in accordance with human personality, without the
influences of class domination and political agendas.115 In this sense, supporters of
these ideas, such as Kennedy and Klare, defined Critical Legal Studies as being
"concerned with the relationship of legal scholarship and practice to the struggle to
create a more humane, egalitarian, and democratic society."116

113
ibid 190.
114
John Rawls, Political liberalism (New York : Columbia University Press, 2005) 224.
115
Jonathan Turley, Hitchhiker's Guide to CLS, Unger, and Deep Thought. Northwestern University Law Review 81 (1987):
595.
116
Duncan Kennedy and Karl E. Klare, A Bibliography of Critical Legal Studies, (1984) Yale Law Journal, Vol. 94, 461.
46


(I) DETERMINING THE CRITICAL VOICES: CRITICAL RACE THEORY AND

FEMINIST LEGAL THEORY
Over the past decades, the significance of the Critical Legal Studies movement has
disappeared and been replaced by more specialised movements, that share the
initial common foundation inspired by Critical Legal Studies, such as feminist
legal theory and critical race theory.117
Critical Race Theory views prostitution as a social phenomenon, which reflects the
social injustices within society. Within these views, this is most significantly seen
in the overrepresentation of people with certain ethnic backgrounds.118 The aim of
Critical Race Theories is to direct the law towards a focus on the experiences of
minority groups in prostitution in order to tackle racial injustice.119
The general ideas of Critical Race Theory perceive the laws as still predominantly
made by middle to upper class white males. This means that the experiences of
people from other backgrounds are inadequately regulated for. The consequence is
that these people have fewer options and are, thus, more likely to end up in
prostitution. This calls for more inclusive laws throughout the legal system in order
to fight the negative effects of prostitution.120
A sub-category of Critical Race Theory is Post-Colonialism. According to these

ideas, Europeans have robbed their former colonies of their culture and wealth.
The effects of this background are still visible in society today and many ethnic
minorities are still suffering from poverty due to this. The underlying idea

117
John Henry Schlegel, Critical Legal Studies, In Sally E Hadden and Alfred L Brophy, A Companion To American Legal
History (John Wiley & Sons 2013).
118
Richard Delgado and Jean Stefancic, Critical Race Theory (Temple University Press 2000) 295; U.S. Dept. of Health &
Human Services, Health Status Of Minorities And Low-Income Groups (US Dept of Health & Human Services, Public Health
Service, Health Resources and Service Administration, Bureau of Health Professions, Division of Disadvantaged Assistance
1991) 193; Elijah Anderson, Code of the street : decency, violence, and the moral life of the inner city (New York : W.W
Norton, 2000) 32.
119
Stephen A Saltzburg, Criminal Law (Lexis Pub 2000) 87; Diana Elizabeth Kendall, Sociology in our times (Boston, MA :
Cengage Learning, 2016) 280.
120
C. Hakim, Feminist Myths and Magic Medcine: The Flawed Thinking Behing Calls for Further Equality Legislation
(London: Centre for Policy Studies, 2011).

47

according to this legal theoretical approach is that the poverty suffered by ethnic
minorities, in turn, leads to an overrepresentation of ethnic minorities in
prostitution. Hence, positive action would be required to achieve a fairer labour
market and, in turn, reduce the issue of prostitution.121
Prostitution is a subject matter, which has been considered in extensive detail in

Feminist Legal Theories and there are clear indications of the great significance of
the issues of prostitution within Feminist Legal Theories, but also vice versa.122
The following will attempt to consider some of the more relevant aspects of the
prostitution discussions in relation to Feminist Jurisprudence.
Feminist Jurisprudence is mainly focussed on the way in which the law was
instrumental in womens historical subordination and the way this is still reflected
in laws and society today. Its key objective in this process is to encourage changes
in relation to womens status by means of adaptation and modification of the law
and its approach to gender, in order to achieve a system which can be regarded as
equally just for members of all genders.123 There are four main schools of thought
within Feminist Jurisprudence, which are generally described to be four models of
feminism, each incorporating different concepts. These models are the Liberal
Equality Model, the Difference Theory, the Sexual dominance model and the Post
modern and anti-essentialist model.124
Probably the two largest schools are the Liberal Equality Model, which is also often
referred to as Liberal Feminism, and the Sexual dominance model, which

121
Sumi Madhok; Anne Phillips; Kalpana Wilson, Gender, agency and coercion (Basingstoke : Palgrave Macmillan, 2012) 128.
122
Fineman, M., Jackson, J. E., & Romero, A. P., Feminist and queer legal theory: intimate encounters, uncomfortable
conversations (Farnham, UK : Ashgate, 2009).
123
ibid.
124
Nancy Levit & Robert R.M. Verchick, Feminist legal theory: a primer (New York: New York University Press, 2006).
48


incorporates the ideas of Radical Feminism.125 However, the other two schools
should not be considered as being insignificant.
The Liberal Equality Model seeks genuine equality for women in contrast to
merely nominal equality. This objective is sought by means of application of liberal
values, predominantly female experiences.126 The sexual Difference Model, in
contrast, seeks to highlight the natural gender differences and seeks these
differences to be acknowledged within the law. They believe that this is the only
way distinctive female issues can be adequately remedied.127 This approach is based
on the idea that there are natural or cultural characteristics which distinguish
women from men, which need to be taken into account in the laws.128
The Dominance Model strongly rejects the ideas of liberal feminism. It views the
legal system as a system which has historically been developed by men, in order to
manifest perpetual male dominance.129
The Postmodern and Anti-essentialist Model focusses on the general post-modern

idea, that every individual perspective is socially situated. Accordingly, this school
of thought rejects the idea of a universal womans voice and explores the ways
other characteristics which contribute to social subordination, such as race, sexual
orientation or class, correlate and interplay with womens experiences and the
future destinies of women.130
The Difference Theory is based on the idea that formal equality will not always
lead to substantive equality. In this sense, the liberal feminist ideas are criticised

125
ibid.
126
Jerry D. Leonard, Legal Studies as Cultural Studies: a reader in (post) Modern Critical Theory (New York, State University of
New York Press, 1995) 92.
127
ibid. 93 et seq.
128
S. Kumra, R. Simpson, & R. J. Burke, The Oxford handbook of gender in organizations (Oxford ; New York, NY : Oxford
University Press, 2014) 114.
129
Nancy Levit & Robert R.M. Verchick, Feminist legal theory: a primer (New York: New York University Press, 2006) 22.
130
Tracy A. Thomas, Tracey Jean Boisseau, Feminist Legal History: Essays on women and Law, (New York: New York University
Press, 2011) 22 et seq.

49

for being male-biased.131 As men and women are different in many biological
aspects, both potentially have different needs that need to be considered in law.
However, as the legal system has developed over thousands of years based on male
experiences, the female needs have not been equally considered in the evolution of
legal systems.132
Due to the wide range of feminist analyses of prostitution, the following will review
a few selected legal theoretical concepts in relation to prostitution in order to serve
as a representative indication of the attitudes within the scholarly realm.
According to the ideas of Radical Feminism, prostitution is always morally

undesirable, as it constitutes one of the most graphic accounts of mens
domination over women in society.133 Prostitutes are seen as symbols of the value
that women have in society. In this sense, prostitutes are representative not only of
womens sexual subordination, but also of womens social and economic
subordination in society.134
Radical feminists highlight the harm caused by prostitution to female experiences

in order to illustrate the present inequalities within a gendered analysis of sexuality
and the state.135 The most significant criticism in accordance with the writings of
Kathleen Barry,136 Andrea Dworkin,137 Catherine MacKinnon,138 Kate Millet,139 and

131
Nancy Levit & Robert R.M. Verchick, Feminist legal theory: a primer (New York: New York University Press, 2006) 15.
132
Gad Barzilai, Communities and law : politics and cultures of legal identities (Ann Arbor : University of Michigan Press,
2003) 169; Tjitske Akkerman, Jean Monnet, Siep Stuurman, Perspectives on Feminist Political Thought in European History:
From the Middle Ages to the Present (New York: Routledge, 2013) 90.
133
Camille Pateman, Defending Prostitution: Charges Against Ericsson (1983) Ethics 93: 56165; Jane Scoular, The Subject of
Prostitution (2011) Feminist Theory 2004; 5; 343.
134
E. Giobbe, Confronting the Liberal Lies about Prostitution, in D. Leidholdt, & J. Raymond (eds) The Sexual Liberals and
the Attack on Feminism, (New York: Elsevier Science, 1990) 77.
135
Jane Scoular, The Subject of Prostitution (2011) Feminist Theory 2004; 5; 343, 344.
136
See: K. Barry, Female Sexual Slavery. (Englewood Cliffs, NJ: Prentice-Hall, 1979); K. Barry, The Prostitution of Sexuality.
(New York: New York University Press, 1995), Jane Scoular, The Subject of Prostitution (2011) Feminist Theory 2004; 5; 343,
345.
137
Andrea Dworkin, Intercourse. (New York: Free Press, 1987); Dworkin, A., Pornography: Men Possessing Women. (New York:
Plume, 1989).
138
Catharine A. MacKinnon, Feminism, Marxism, Method and the State (1982) Signs 7(3): 51544; Catharine A. MacKinnon,
Feminism Unmodified: Discourses on Life and Law. (Cambridge, MA: Harvard University Press, 1987); Catharine A. MacKinnon,
Toward a Feminist Theory of the State. (Cambridge, MA: Harvard University Press, 1989); Catharine A. MacKinnon,
Confronting the Liberal Lies about Prostitution, (1990) in D. Leidholdt & J. Raymond (eds), The Sexual Liberals and the Attack

50


Carole Pateman140 is the understanding of prostitution as constituting a form of

violence against women. This violence is not solely interpreted in the actual
conducting of prostitution, but is seen more fundamentally as the representation of
the absolute embodiment of patriarchal male privilege.141 Sheila Jeffries provides a
good insight into the reasoning behind these thoughts by explaining that
prostitution constitutes the ultimate in the reduction of women to sexual objects
which can be bought and sold, to a sexual slavery that lies at the root of marriage
and prostitution and forms the foundation of womens oppression.142 Radical
feminists believe that prostitution contributes to womens oppression. Thus, they
seek to have all prostitution classified as a human rights violation.
A good representation of the Liberal Feminist Views can be found in Phethersons

A Vindication of the Rights of Whores.143Accordingly, prostitutes are placed in the
realm of a civil rights movement in which they are demanding for the right to
charge for what other women give for free.144 The ideas offer significant counter-
hegemonic insights by challenging the identification of sexual acts with acts of
desire and opposing the distinction between erotic and affective activity, on the
one hand, and economic life on the other.145
Paglias account of drag queen feminism highlights some of the liberal ideas of
prostitution and sexuality.146 Accordingly, Paglia explains that women are the
dominatrix of the universe. In this sense, she explains that prostitutes constitute
the ruler of the sexual empire, which men can only have access to by paying.147 This

on Feminism. (New York: Elsevier Science, 1990); Catharine A. MacKinnon, Prostitution and Civil Rights (1993) Michigan
Journal of Gender and Law 1: 1331.
139
K. Millet, The Prostitution Papers. (St. Albans: Paladin, 1975).
140
Carole Pateman, Defending Prostitution: Charges Against Ericsson (1983) Ethics 93: 56165; Carole Pateman, The Sexual
Contract. (Cambridge: Polity Press, 1988).
141
K. Kesler, Is a Feminist Stance in Support of Prostitution Possible? An Exploration of Current Trends (2002) Sexualities 2:
21935, 219.
142
Sheila Jeffries, The Idea of Prostitution. (Melbourne: Spinifex Press, 1997) 2.
143
Gail Pheterson, A Vindication of the Rights of Whores. (Seattle, WA: Seal Press, 1989).
144
Frdrique Delacoste & Priscilla Alexander, Sex Work: Writings by Women in the Sex Industry. (London: Virago, 1989) 273.
145
Noah D. Zatz, 'Sex Work/Sex Act: Law, Labor, And Desire In Constructions Of Prostitution' (1997) 22 Signs: Journal of
Women in Culture and Society. 22(2): 277308, 277.
146
Camille Paglia, Vamps & Tramps: New Essays (Vintage, New York, 1994).
147
Camille Paglia, Vamps & Tramps: New Essays (Vintage, New York, 1994) 42 et seq.

51

demonstrates the way in which the liberal ideology is willing to view the freedom of
women to separate themselves from their subordinate position by utilising their
bodies and their sexuality to gain power. Accordingly, feminist perspectives such as
the sexual dominance model are criticised as reducing prostitutes to pitiable
charity cases in need of their help.148 Hence, in doing so, they are guilty of
arrogance, conceit, and prudery.149 In contrast to the radical ideas of prostitution,
the Liberal Feminists believe that prostitution can be a desirably chosen activity.150
Postmodern Feminists do not tend to consider prostitution as a dissident sexual

practice or a fundamentally oppressive one. Accordingly, the referent, the flesh-
and-blood female body engaged in some form of sexual interaction in exchange for
some kind of payment, has no inherent meaning and is signified differently in
different discourses.151
Postmodern Feminism is often recommended to be viewed in light of their

empirical research due to the wide range of separate accounts of prostitution
postmodern feminism tries to include in their perspectives. A good example is Julia
OConnoll Davidsons research,152 which empirically looks into a multitude of types
of prostitution in relation to the degrees of control prostitutes have over their lives.
A key point in postmodern discussions of prostitution is concerned with its links to

migration. In this regard, Agustn, for instance, criticises the Coalition Against
Trafficking in Women of having attempted to merge the concepts of human
trafficking and prostitution in an effort to save as many victims as possible.153
However, this practice totalises all experiences of migrants and women within
prostitution, who find themselves in a variety of different circumstances and with a

148
ibid. 57.
149
ibid.
150
ibid.
151
Shannon Bell, Reading, Writing and Re-Writing the Prostitute Body. (Bloomington: Indiana University Press, 1994) 1.
152
Julia O'Connell Davidson, Prostitution, Power, And Freedom (University of Michigan Press 1998).
153
Laura Agustn, Sex Workers and Violence Against Women: Utopic Visions or Battle of the Sexes? (2001) Development
44(3): 10710, 107, available at: http://www.walnet.org/csis/papers/dsid-0109.html
52


variety of different levels of personal will, which impedes the effective process of
proposing practical solutions.154
The Difference Theory can be used to argue many different and opposing
arguments to prostitution. The crucial element is the consensus of an inadequate
consideration of sexual differences in the law. In this sense, some use the ideas of
this theory to argue that women are economically forced into prostitution due to
inadequate labour laws that are still ineffective in achieving gender equality in the
labour market. Others take a completely different stance, and explain that due to
the different gender roles in sexual intercourse, women are inadequately perceived
as automatically constituting the victim within the transaction. Accordingly, due to
the nature of female genitals, it is perceived that women are the inactive party in
sexual activity, to whom something is done, whereas men are considered the
active party, who are doing something to someone.155 Thus, the sexual differences
result in laws that depict men as perpetrators and women as victims.156
A contemporary theoretical approach which deserves a particular emphasis in the

examination of Feminist Legal Theories and prostitution is found in the works of
Martha Nussbaum. In particular, in her piece Sex and Social Justice157, she seeks
to explain how sex and sexuality are immaterial distinctions in relation to morality.
Nussbaums work is of key significance in modern developments of Feminist Legal

Theory. Although she is often classified as a Liberal Feminist, it may be justifiable
to say that she is a Liberal, who also happens to be a Feminist. The reason for this
is the way she has developed her own distinct version of Liberal Feminism. In a
way, Nussbaum attempts to move Liberal Feminism towards a new era, in which
women can be equal and enjoy equal rights on the basis of Legal Liberalism, not

154
ibid.
155
Sheila Jeffreys, Anticlimax: a feminist perspective on the sexual revolution (Women's Press, 1990) 138; Alan Soble & N
Nicholas Power (Eds.), Philosophy of sex (Lanham, MD: Rowman & Littlefield Publishers, 2008) 121, 379.
156
Linda LeMoncheck, Loose Women, Lecherous Men : a Feminist Philosophy of Sex. (New York: Oxford University Press,
2006) 173; Vern L Bullough; Bonnie Bullough, Human sexuality : an encyclopedia (New York : Garland Pub., 1994) 211.
157
Martha C. Nussbaum, Sex & Social Justice. (New York: Oxford University Press, 1999) 29-47.

53

only as women, but as individual persons. This is reflected in her idea of

personhood in relation to rights which she describes in the following manner:
[T]he core of rational and moral personhood is something all human
beings share, shaped though it may be in different ways by their
differing social circumstances. And it does give this core a special
salience in political thought, defining the public realm in terms of it,
purposefully refusing the same salience ... to gender and rank and
class and religion.158
Especially in relation to prostitution, Nussbaum has reviewed the concept of

objectification as found in Kants ideas as well as in the Feminist arguments put
forward by Catherine MacKinnon and Andrea Dworkin.159 In her chapter Seven
Ways to Treat a Person as a Thing, she lists seven notions as being inherently
involved in the objectification of a person. These include instrumentality, denial of
autonomy, inertness, fungibility, violability, ownership, and the denial of
subjectivity.160 A key point in Nussbaums opinions is the fact that, contrary to the
empowerment and sex-positive considerations of the Liberal Feminist Model
discussed above, Nussbaum believes that pornography, for instance, is still a form
of objectification in accordance with her analysis. In this sense, she demonstrates
similarities in her reasoning with the ideas of radical feminism. Nevertheless, she
remains a strong advocate of the legalization of prostitution. In 2008, Nussbaum
became known for her statement in relation to prostitution and abortion that "the
idea that we ought to penalise women with few choices by removing one of the
ones they do have is grotesque."161
One of Nussbaums key arguments in relation to prostitution is the fact that the act
of selling sexual services cannot be argued in terms of its moral dubiousness.
Accordingly, when women choose to enter into prostitution on the basis of a lack
of economic options, the wrongfulness is not in the act of prostitution itself, but

158
Martha C. Nussbaum, & E. Freud, E., Sex and Social Justice (New York: Oxford University Press, 1999) 70.
159
ibid. 2018
160
ibid.
161
Martha C. Nussbaum, Trading on Americas Puritanical Streak, Prostitution Laws Mean-spirited, Penalize Women (2008)
the Atlanta Journal-Constitution on March 14th, 2008. Available online at
<http://www.ajc.com/search/content/opinion/2008/03/13/spitzered_0314.html>
54


instead in the economic circumstances of women which lead to the lack of

alternative choices.162
A particularly interesting account of the evaluation of the selling of ones body in

the form of prostitution is Nussbaums analysis of prostitution in comparison with
other physical labour. In this sense, by examining the similarities between
prostitution and six hypothetical accounts of other forms of labour, consisting of 1.
A factory worker in the Perdue chicken factory, who plucks feathers from nearly
frozen chickens, 2. A domestic servant in a prosperous upper-middle-class
house, 3. A nightclub singer in middle-range clubs, who sings (often) songs
requested by the patrons, 4. A professor of philosophy, who gets paid for
lecturing and writing, 5. A skilled masseuse, employed by a health club (with no
sexual services on the side) and 6. A person whom [she calls] the colonoscopy
artist; she gets paid for having her colon examined with the latest instruments, in
order to test out their range and capability.163
In her examination, she concludes that all employed people accept money in
return for some form of use of their bodies. Although she explains that certain
stigmatisation may be valid in relation to some professions based on well-reasoned
arguments. However, she explains that prostitution appears to be stigmatised in
relation to other professions on the basis of class-prejudice and stereotyping,
especially in relation to the criminalisation of prostitution and historic perceptions
of immorality.164

162
Martha C. Nussbaum, Whether from reason or prejudice: Taking money for bodily services (1998) Journal of Legal Studies,
27, 2; Voice, P., Marthas Pillow: Nussbaum on Justice and Sex (2002) Social Justice Research, Vol. 15, No. 2, June 2002.
163
Martha C. Nussbaum, "Whether from reason or prejudice": Taking money for bodily services (1998) Journal of Legal
Studies, 27, 2.
164
ibid.

55

In the process of the development and justification of her ideas, Nussbaum draws
on the concepts of many of the mentioned philosophers in this paper, such as Mill,
Kant, Rawls, Plato and Aristotle.165
D. REALISM
The core element of Legal realism is its challenge of the classical legal claims of
legal institutions providing autonomous systems, self-regulating legal discounts
which are untouched by politics. Similarly to Legal Positivism, Legal Realism
examines the law purely as the commands of a sovereign, which in todays political
environment is most commonly the state. However, contrary to positivists such as
Austin, realists see this as a process which is achieved through the courts as
mediums.166 As the legislation deals with matters in relation to general classes of
persons, things or actions, statutory wording needs to be kept general in order to
achieve a broad application. This often means, however, that the texts lack
precision.167 This generality, thus, can open itself up to potential borderline cases
emerging.168 Accordingly, one of the main tasks of realists is to seek to uncover the
uncertainties of laws. They argue that for any particular person in any particular
factual situation, the law and the way it will affect the particular person in question
is a matter for the courts to determine. Thus, the law for that particular subject will
only come to exist after a court has ruled on the particular facts of the particular
case.169 Based on this idea, laws and statements of law are merely predictions of
future court decisions.170

165
Martha C. Nussbaum, Sex & Social Justice. (New York: Oxford University Press) 1999.
166
P.J. Fitzgerald, Salmond on Jurisprudence, Sweet & Maxwell, London, Twelfth edn., 1966, 35.
167
ibid. 39.
168
ibid.
169
Jerome Frank, Law and the Modern Mind, London Stevens & Sons Ltd., 1949, p.46.
170
ibid.
56


(I) DETERMINING WHERE THE POWER TO INFLUENCE IS LOCATED:

AMERICAN OR SCANDINAVIAN REALISTS
Based on this, the American Realists are considerably sceptical about legal rules. In
cases where a court needs to decide between certain alternatives, the outcome will
heavily rely on certain characteristics of the members of the bench such as their
social background, personality, gender etc.171 Oliver Wendell Holmes Jr., one of the
most significant representatives of this school of thought,172 wrote in his book The
Common Law that,
The life of the law has not been logic: it has been experience. The felt
necessities of the time, the prevalent moral and political theories,
intuitions of public policy, avowed or unconscious, even the
prejudices which judges share with their fellow-men, have had a good
deal more to do than the syllogism in determining the rules by which
men should be governed. The law embodies the story of a nations
development through many centuries, and it cannot be dealt with as if
it contained only the axioms and corollaries of a book of
mathematics.173
Dean Roscoe Pound, explains accordingly, that judges should use wide discretion,
recognise unique circumstances, employ flexible standards and be encouraged to
achieve free judicial finding[s] of the grounds of decision; and that certainty
attained by mechanical application of fixed rules to human conduct has always
been illusory.174 This statement indicates how Pound views the law as a form of
social engineering, instead of legal imperatives which are obeyed by subjects due to
fear of coercive sanctions.175
While the American realists predominantly looked into the way in which law is
made and the way it ought to be made, the Scandinavian realists focussed on the
way in which the law affects peoples behaviour and is able to change it. In this
sense, the approach of this theory is to explain the force of the law in a scientific

171
P.J. Fitzgerald, Salmond on Jurisprudence (Sweet & Maxwell, London, Twelfth edn., 1966) 40.
172
Steven J. Burton, The path of the law and its influence: the legacy of Oliver Wendell Holmes, Jr. (Cambridge : Cambridge
University Press, 2007) 133.
173
Oliver Wendell Holmes, The Common Law, (Macmillan And Co., 1911) 1.
174
Jerome Frank, Law and the Modern Mind (London: Stevens & Sons Ltd., 1949) 207.
175
Krishna Iyer, V. R., Justice at Crossroads, (Deep & Deep Publications, New Delhi, 1992) 34.

57

manner, which is separate from the traditional metaphysical elements.176 These

scientific investigations have revealed that the force of law is a result of its
psychological effect, which in turn is created by the ritualistic modes in which law
is made. This includes both the process of legislation being approved by
Parliament as well as judges making decisions. The four most well-known
Scandinavian realist scholars are Axel Hgerstrm, Karl Olivecrona, Vilhelm
Lundstedt, and Alf Ross.177
When seeking applications of the ideas of these theorists in current literature, it

becomes apparent that there is little or no work which looks into the correlation
between the ideas of Scandinavian realism and approaches to prostitution. The
reason for this may be that the focus of realism is in the functioning of law itself
and not the substantive elements of the law, which would be regarded as mere
realist facts.
CONCLUSION
The aim of this roadmap was to provide a guided overview of some of the most
relevant concepts of jurisprudence in order to enhance efficiency when beginning
to conduct legal theoretical research in the area of prostitution laws. Being able to
initially determine whether the approaches being examined point towards the ideas
of Natural Law, Legal Positivism, Critical Legal Studies or Legal Realism narrows
down the research focus and prevents aimless and irrelevant research, which is not
only time-consuming, but can also result in the loss of initial focus. Hereafter, a
guided tour down the various paths of these four legal umbrella-theories has
developed an understanding of the relevant concepts of various sub-theories, as
they have developed from one another over the historic evolution of legal theory. It
can be seen that legal theory has developed from a predominant Natural Law
environment, to an increasingly positivist outlook on laws, that in recent decades

176
Suri Ratnapala, Jurisprudence (Cambridge University Press 2013) 119.
177
ibid.
58


has become increasingly critical. This, however, does not mean that the previous
ideas have become obsolete; they have continued to be present in the underlying
ideas of many contemporary approaches. In this sense, some essential ideas of
Aristotle are clearly reflected in the theoretical ideas of Immanuel Kant, whose
ideas have influenced the thoughts of feminist legal theorists, such as Catherine
MacKinnon or Martha Nussbaum.
Although the roadmap has been based on a selected number of theories and
theorists, it provides a foundation, from which one can proceed into a more in-
depth analysis of the jurisprudence of prostitution laws and an understanding of
their interplay in practice.

59
TOWERS OF LIFE A LEGAL STUDY ON RIGS-TO-REEF IN
THE NORTH SEA
Jordan Murray Gray*
INTRODUCTION
The retirement of the baby boom generation has always been something of an
impending economic threat. Governments do not just have to worry about the
retirement of their citizens1 they also have to consider how to manage the
upcoming retirement, and subsequent decommissioning, of numerous
offshore oil installations.2 Retirees do not contribute to the economy in the
same way that workers do and they tend to cost the state money, rather than
make it money. This is not dissimilar to an oil installation that has reached the
end of its operational life, which can result in some overwhelming
consequences that the concerned stakeholders must mitigate. 3 It will be
demonstrated that disposal at sea in the form of what is known as rigs-to-reef
(RTR) 4 can achieve a more effective method of disposal than the normal
practice of fully removing obsolete installations and taking them to land.
The central aim of this paper is not to simply discuss what the law is, but to
assist policymakers in creating workable ideas that have the ability to
transcend into practical guidelines. Chapter I will outline the history of the
Brent Spar protest by showing how it has impacted policy; the legal argument
used by Shell will be recreated and various recommendations will be made to
improve practice; this will conclude with suggestions on how to implement
clearer grounds of jurisdiction. Chapter II will provide an account of the
environmental benefits of RTR and illustrate why now is a good time to adopt
an encompassing RTR regime.

1
An estimated 600,000 people turning 65 each year until 2018. See
<http://www.telegraph.co.uk/finance/personalfinance/pensions/9563647/Recordnumbersreacetirement-age-as-baby-
boomers-turn-65.html> accessed 16.11.14
2
Total decommissioning expenditure across the UKs continental shelve is now expected to exceed 27bn by 2050.
See <http://www.oilandgasuk.co.uk/cmsfiles/modules/publications/pdfs/OP049.pdf> accessed 16.10.14
3
For an overview of all of the stakeholders involved in the process of decommissioning, see Dan Rothbach, Rigs-To-
Reefs: Refocusing The Debate in California (2006-2007) 17 Duke Environmental Law & Policy F. 283
4
RTR is a method of disposal that can support marine life
2017, J.M. Gray
Murray Gray is a Trainee Solicitor at DWF LLP
* Jordan
60


Chapter III will consider the US environmental watchdogs that operate
separately from government and will discuss the Gulf disaster and the
importance of having a proactive approach to decommissioning; this will lead
to a case being made for the development of a domestic UK framework that
can comprehensively govern RTR in the North Sea Region (NSR) and,
appropriately, the main legal hurdles posed to this will be considered. This
will be followed in chapter IV, with an analysis of the liability issues
surrounding RTR combined with recommendations on how the law should
address this.
Finally, concluding remarks will be provided along with some overall

recommendations on what the industry can learn from the Brent Spar protest
and how to best implement an encompassing, and legally viable, regime that
governs RTR in the NSR.
BRENT SPAR & THE SURROUNDING INTERNATIONAL LEGAL

FRAMEWORK
A. CONFLICTING VIEWS: A BRIEF OVERVIEW

On April 30th, 1995, a group of Greenpeace activists boarded the Brent Spar
buoy to protest against Shells plans to dispose of the facility in a deep-water
trench. 5 The Prime Minister at the time John Major expressed his
support for Shell.6 Such support was understandable as the licence granted to
dump the Brent Spar was sustained by three main reports7 and arguably the
UK government did not want to upset one of the biggest employers in the
world.8 The oil industry had also been lobbying government for years to allow

5
The UK government -February 16th 1995- approved the disposal method
6
Christopher Barclay, The Disposal of Disused Oil Platforms, Research Paper (1995) Science and Environment Section
95/77
7
A Safety and Environmental Assessment of the Options by Aberdeen University (AURIS report); an impact
hypothesis; a report on the best practicable environmental option (BPEO)
8
Shell currently employs 92,000 people in more than 70 countries. See
< http://www.shell.com/global/aboutshell/who-we-are/our-people.html> accessed 17.11.14
61

offshore disposal.9 Greenpeace, however, took the opposite view, claiming that
it is unethical to dump at sea and oil companies cannot live in an ethical
vacuum by going against the collective consciousness of the public.10
Greenpeace sternly opposed dumping at sea. Their website shows that the
occupation of Brent Spar is a victory on the basis that the ocean is not a
dumping ground 11 and, by occupying the Brent Spar, they successfully
achieved a moratorium on disposal at sea.12 This is a reasonable argument
simply because many, if not most, would agree that the ocean should never be
used as a dumpsite13 that international oil companies can exploit for their own
benefit. Although, it is worth mentioning, this argument will probably be
obsolete in the future since it has been argued that in accordance with
rising populations the ocean will have to be used to dispose of waste.14
Nonetheless, Greenpeace felt that they successfully intervened on behalf of the
public interest by sinking a selfish dumping policy; a policy designed to
benefit the operators by minimising their costs and one that Greenpeace was
not willing to allow.15 This argument was the basis for a protest that caught the
oil industry by storm and heightened the international standards on
abandonment at sea.16

9
Kasoulides, G.C. Removal of offshore platforms and the development of international standards. (1989) Marine Policy 249-
263
10
Greenpeace case was a restatement of the conservationist approach: recover, recycle, reuse. See BBC News story at
<http://news.bbc.co.uk/1/hi/sci/tech/218527.stm > accessed 31.10.14
11
Shell reverses decision to dump Brent Spar. See Greenpeace Website at
< http://www.greenpeace.org/international/en/about/history/the-brent-spar/ > accessed on 29.10.14
12
Mark Baine, The North Sea rigs-to-reef debate (2002) 59 ICES Journal of Marine Science S277
13
With growing populations, one cannot exclude the deep sea being used for general waste disposal. See
<http://isites.harvard.edu/fs/docs/icb.topic1291423.files/Previous%20years%20papers/2010%20Papers/November%20pape
rs%204/Angel_Waste.pdf >accessed 19.11.14
14
Ibid
15
A. Rice, "Does Science Have a Role in Risk Analysis? The Case of Brent Spar and Other Cautionary Tales," Paper presented
at the Society for Risk Analysis-Europe Conference, June (1996). Available at
<http://www.riskworld.com/abstract/1996/sraeurop/ab6ad138.htm >
16
Dolly Jrgensen, OSPARs exclusion of rigs-to-reefs in the NSR (2012) 58 Ocean & Coastal Management 57, 61

62

B. THE JUSTIFICATION FOR THE DISPOSAL METHOD OF THE
BRENT SPAR
Shell, despite such arguments, claimed that UK policy and regulations
surrounding disposal of redundant offshore oil installations comply with
the highest international standards and their disposal plan entailed a
scrupulous evaluation of a diverse range of environmental, safety and
economic factors.17 They also surveyed and selected the disposal site to be 150
miles out in the Atlantic in a water depth of around 7,800ft. 18 The laws
governing this are designed to implement the best international standards on
disposal. 19 It would seem, therefore, that such standards were intended to
guarantee the best method of disposal. Greenpeace took the conflicting view,
however, by arguing the international treaties set out a minimum standard
that can be manipulated to suit the agenda of massive oil companies.20
Shell was obviously operating on the understanding that they had complied
with their legal obligations21 and this assertion was correct, but there is tension
between the different international laws that govern disposal at sea. 22 The
removal of offshore installations, for instance, has never been a universal
regulatory requirement: in the US, for example, the careful placing of
installations in the ocean is a suitable method of disposal so long as it is
environmentally beneficial and economically viable.23 However, as mentioned,
the groundwork of Shells argument was disputable on the basis that
international standards on disposal at sea were insufficient in protecting the
marine environment from being exploited by oil companies.24

17
Christopher Barclay, The Disposal of Disused Oil Platforms, Research Paper (1995) Science and Environment Section
95/77 p.8
18
Ibid
19
Woodcliff, J, Decommissioning of Offshore Oil & Gas Installations in European Waters: The end of a Decade of
Indecision?(1999) The International Journal of Marine & Coastal Law p101-122
20
Supra, Barclay, n6
21
For a detailed account of the Brent Spar protest, and timeline, see the Brent Spar Dossier. Available at
<http://s02.static-shell.com/content/dam/shell-new/local/country/gbr/downloads/e-and-p/brent-spar-dossier.pdf>
accessed 19.11.14
22
Supra, Woodcliff, n19
23
National Fishing Enhancement Act 1984 was introduced to promote commerce whilst enhancing fishery
opportunities.
24
Supra, Greenpeace Website, n11
63

It is critical, therefore, to appreciate the justification behind the disposal
method chosen by Shell and attempt to understand the international law from
a historical point; in other words, attempt to recreate the argument that Shell
may have used when justifying their method of disposal. Hence, a discussion
will take place on the international laws surrounding removal followed by an
analysis of the law on dumping.
C. INTERNATIONAL LEGAL REQUIREMENTS: REMOVAL OR NOT?

The first declaration on the decommissioning of offshore installations was
made in the 1958 Convention on the Continental Shelf and in particular Article
5(5) which states, Any installations which are abandoned or disused must be
entirely removed. Although the UK was party to this convention, the accepted
view is that this provision should be interpreted in a way that is consistent
with the purpose of the convention, which is to exploit natural resources
without unjustifiable interferences. 25 The main aim, therefore, is not to
necessarily prohibit abandonment at sea, but to allow member states the
autonomy to exploit oil around their continental shelf without unnecessary
interference.26 Moller observes, however, that one cannot be entirely certain
whether the non-observance of Article 5(5) would give rise to a breach of
international law.27 It can be argued, however, that the complete removal
clause does not need to be adhered by 28 and, instead, Article 60(3) of the
United Nations Convention on the Law of the Sea 1982 (UNCLOS) is the position
favoured by the UK government.29
UNCLOS introduced what appears to be a more relaxed approach to removal.

Art 60(3) specifically states:

25
Art. 2(1) of the 1958 Convention
26
Ibid
27
Moller in Marc Hammerson, Law, Policy and Comparative Practice, Globe Business Publish Limited (2013)
28
Brent Spar had different options for disposal but decided to abandon at sea. Also, as will be discussed, Article 311
paragraph 1 of the Vienna Convention on the Law of Treaties 1969 states that UNCLOS shall take priority over the 1958
convention.
29
Ibid

64

Any installations or structures which are abandoned or disused
shall be removed to ensure the safety of navigation, taking into
account any generally accepted international standards
established in this regard by the competent international
organisation. Such removal shall also have due regard to fishing,
the protection of the marine environment and the rights and
duties of other States. Appropriate publicity shall be given to the
depth, position and dimensions of any installations or structures
not entirely removed.
There is an unmistakable tension between Article 5(5) of the 1958 Convention

and Article 60(3) of UNCLOS. The latter recognises that complete removal is
not necessary whereas the former requires that offshore installations be
removed completely. Although UNCLOS is more relaxed than the 1958
convention, it could be inferred that it does still pose a threat to RTR since the
US has still to ratify it,30 thus suggesting they feel it poses a threat to their
current abandonment methods.31 However, going back to the Brent Spar, it is
important that the tension between Article 5(5) and Article 60(3) did not lead
to legal uncertainty.
(I) CONFLICTING LAW: A COMMON DENOMINATOR

When disentangling the tension between the two aforementioned treaties, one
should look to the Vienna Convention on the Law of Treaties 1969,32 which states,
in Article 31, that any international treaty should be interpreted in accordance
with its ordinary contextual meaning and in the light of its object and
purpose.33 Further, Article 311 at paragraph 1 states that UNCLOS shall prevail,
as between States Parties, over the Geneva Conventions on the Law of the Sea of 29
April 1958. Consequently, Article 311 paragraph 1 specifically allows

30
UN Treaty Collections, the US is not present in the UNCLOS contracting parties, available
at<http://treaties.un.org/Pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&la
ng=en> accessed 19.10.14
31
Gulf of Mexico, RTR is an accepted method of disposal
32
UK is a signatory to the Vienna Treaty
33
Article 31 provides for the general rule of interpretation of the Vienna Convention on the Law of Treaties. Available
at <http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf >accessed 19.10.14
65

precedence of UNCLOS over the 1958 convention, but this must be interpreted
in accordance with Article 31.34
This approach could have led to the justification that the Brent Spar does not
need to be fully removed; instead, it can be toppled at sea or even turned into
an artificial reef. Still, Article 60(3) requires member states to take into account
the relevant international standards that have been developed by a competent
international organisation. 35 However, in accordance with traditional legal
interpretation, it appears that complete removal was not a legal necessity
under UNCLOS at the time of the Brent Spar incident. Esmaeili, however,
takes the opposite view by declaring, the complete removal regime is legally
applicable to host states.36 It would appear that this position only applies to
countries that have not ratified UNCLOS making them members of the 1958
convention and thus bears little relevance to the present debate.
(II) INTERNATIONAL LEGAL REQUIREMENTS: DUMPING OR NOT?

Although the 1958 Convention and UNCLOS provide some perspective on
whether or not removal is necessary, they do not address the issue of
dumping in enough detail. UNCLOS Article 1(5)(a) defines dumping as any
deliberate disposal of vessels, aircraft, platforms or other man-made structures at
sea. It goes on, however, to claim in Article 1(5)(b)(ii) that the placement of
matter for a purpose other than the mere disposal thereof, provided that such
placement is not contrary to the aims of this Convention will not constitute dumping.
Meaning, if it can be established that the installation is not simply being
dumped then disposal at sea is possible. An artificial reef, for instance, would
constitute an exemption to this provision because the disposed installation
would be serving another purpose and is not merely being disposed thereof
at sea. Full removal was the option taken by Shell, but this was with the mind-
set that it would be abandoned at sea and, in order to reach this conclusion,

34
Ibid
35
International Maritime Organisation (IMO) is the competent international organisation.
36
Hossein Esmaeili, The Legal Regime of Offshore Oil Rigs in International Law Ashgate, Aldershot, (2001) at p. 53

66

consultation with the Convention on the Prevention of Marine Pollution by the
Dumping of Waste and Other Matter 197237 (London Convention) would most
likely have occurred.
The London Convention was based on the older OSLO Convention38 and was
designed to address disposal at sea whilst preventing the dumping of
hazardous materials.39 The convention applies to all marine areas outside the
internal waters of the coastal state,40 which applied because Shell proposed
that the Brent Spar be dumped in the Atlantic41 and dumping, according to
the convention, includes any deliberate disposal at sea of platforms or man-
made structures. 42 Hence, when Shell was considering the dumping of the
Brent Spar, they would have consulted Annex III of the London Convention,
which allows for a permit to abandon at sea subject to a number of criteria
including, the actual characteristics of the waste, selection of dumping site,
and the disposal technique to be employed. 43 There must also be an
environmental impact-assessment-and-an-appropriate-monitoring-regime.44
Determining this would have been a lengthy procedure, which would have
involved a scrupulous evaluation of the various different legal obligations.
Despite this, Shell reversed their disposal method due to significant pressure
from both the media and public. 45 This, it is suggested, led to a shift in
perception that began almost immediately with the London Convention being
supplemented by the 1996 Protocol, which introduced significant changes to
the concept of dumping46 by saying, in essence, that dumping is prohibited47

37
Available at <http://www.imo.org/OurWork/Environment/LCLP/Documents/LC1972.pdf>
38
Kiss and Shelton (1991), International Environmental Law, 183; Convention for the Prevention of Marine Pollution by
Dumping from Ships and Aircraft (Oslo, 15 February 1972)
39
Supra n37, Article I
40
Supra, Kiss & Shelton, n38
41
Supra, Barclay, n17
42
Supra, n37, Article III, paragraph 1 (ii)
43
Ibid
44
Ibid
45
Rice, T. & Owen, P Decommissioning the Brent Spar (1999) Spom Press. London
46
The 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter, for further information see<http://www.imo.org/OurWork/Environment/PollutionPrevention/Pages/1996-
67

with extremely limited exceptions.48 The 1996 protocol did, however, bring in
some welcome changes such as the polluter pays principle.49 Nonetheless,
Shell had to reverse their disposal plan and, as shown, there was an almost
immediate shift in the mind of policymakers.50 It is important, therefore, to
look at some of the reasons behind this.
D. GREENPEACE: MUDDYING THE WATERS

Even though the disposal method chosen by Shell was within the law, and
scientifically justified,51 it did not stop them losing the public battle. Upon a
closer analysis of Greenpeaces annual report, it becomes apparent that there
was considerable rhetoric used to justify their actions. There is reference, for
instance, to the fact that if the Brent Spar were to have been dumped at sea
then it would have been the equivalent of dumping 6,000 old cars at sea.52 This
justifies the argument that the same rules should apply to corporations and
individuals53 as to do otherwise is unjustified and unfair. This is a reasonable
position to take, but such rhetoric tends to muddy the waters and makes
having a transparent and open debate more difficult.54
Greenpeace also argued that by forcing Shell to reverse their abandonment

plans; they created a safer method of disposal through shore-based
dismantling.55 Around six years after the protest, however, a Health & Safety
paper was published which carried out a study into eight offshore installations
that were all to be returned to shore for dismantling.56 The study indicated the

Protocol-to-the-Convention-on-the-Prevention-of-Marine-Pollution-by-Dumping-of-Wastes-and-Other-Matter,-
1972.aspx >accessed 5.10.14
47
Ibid, Article 4
48
Ibid, Annex 1
49
Ibid, Article 3
50
Supra, 1996 Protocol, n46
51
Art III, paragraph 1 (ii) of the London Convention requires an environmental assessment. This suggests that Shell had
demonstrated that their method of disposal was scientifically justified.
52
Greenpeace Annual Report 1995, available at <http://www.greenpeace.org/international/Global/international/planet-
2/report/2006/11/greenpeace-international-annua.pdf > accessed 13.11.14.
53
Ibid, p. 11
54
For an overview of the public relations battle see<http://www.ethicalcorp.com/communications-reporting/brent-
spar-battle-launched-modern-activism >accessed 30.10.14
55
Supra, Greenpeace Annual Report, n52, p.11
56
Decommissioning topic strategy OFFSHORE TECHNOLOGY REPORT (2001/032) at p70 at para 8.2.1. Available at
<http://www.hse.gov.uk/research/otopdf/2001/oto01032.pdf> accessed 18.11.14

68

opposite of Greenpeaces findings by presenting evidence that the risks,
associated with dismantling onshore, were considerably higher than
abandoning an installation at sea.57 The report suggested that there is a much
greater risk of exposure to offshore hazards when completely removing an
installation 58 thus highlighting that partial removal options, or toppling an
installation at sea, are not only environmentally sound59 but are also safer to
those carrying out the task. It is suggested that such claims inter alia led to
impartial bodies questioning the scientific rationality that underpins disposal
at-sea.
One such body was a scientific journal, Nature, who declared that Shells
decision not to dump the Brent Spar was an unnecessary dereliction from
scientific rationality.60 This, however, is not entirely reasonable since Shell is a
business and the protest was causing their brand damage61 so it is slightly nave
to suggest that it was an unnecessary dereliction from scientific rationality.
The journal went on, however, to say that the Brent Spar protest exposed the
shallowness of Greenpeaces arguments on scientific issues, 62 which reinforces
Shells argument that the international law upholds the highest standards
when it comes to the environmental aspects of decommissioning.63 The Marine
Pollution Bulletin made similar observations by taking the view that there was
little doubt that disposing the Brent Spar at sea was the best option
environmentally.64 It is suggested, therefore, that the trial by media is what
led to the reversal of Shells chosen disposal method.

57
Ibid
58
Ibid
59
Supra, environmental impact assessment, n42
60
Nature 1995. Brent Spar, Broken Spur Nature 375: 708. Available at
<http://www.nature.com/nature/journal/v375/n6534/pdf/375708a0.pdf> accessed 20.11.14.
61
Supra, Brent Spar Dossier, n21
62
Ibid
63
Supra, Barclay, n17
64
McIntyre, A.D. The Brent spar incident- a milestone event. (1995) Marine Pollution Bulletin 30: 578
69

E. A TRIAL BY MEDIA
Greenpeace attempted to raise legal action in order to challenge the
decommissioning of the Brent Spar, but the English courts declined
jurisdiction and it was expected that the Scottish courts would also decline.65
The reasoning behind this is related to public law, in particular judicial review,
and the issue of standing.66 Such legal formalities meant that Greenpeace,
rather than going through the appropriate legal channels, resorted to a public
relations battle. If this dispute had gone through the courts, it might,
theoretically, have resulted in a different outcome.
Shell may have been able to justify that they acted within the law and the court
would most likely have found in their favour, which would then resonate with
the public that abandonment is a viable method of disposal. This did not
happen and, instead, the public relations battle soared out of control and led
to Shell petrol stations being boycotted and even physically attacked during a
standoff.67 Therefore, it is suggested, that clearer legal channels be created to
avoid such public disputes. In this regard, the recent recommendation, made
by Lord Gill, to develop more specialised environmental courts, is most
welcome.68 One just has to look to Denmark, for instance, where independent
appeal boards provide efficient means of resolving environmental disputes.69
This, however, is a small part of the overall picture. It is suggested that

pressure groups, like Greenpeace, have clearer grounds to obtain standing for
judicial review. Perhaps, as suggested by Redgwell, there should be further
integration between human rights and environmental law.70 In other words, as
outlined by Ebesson, access to justice should provide a clear means to enforce

65
R v Secretary of State for Scotland and Another, ex parte Greenpeace Limited (Popplewell J), May 24 1995 (unreported) in
Sparring at Oil Rigs: Greenpeace, Brent Spar and challenges to the legality of dumping at sea, Poustie, 1995 JR 542
66
Blair and Martin, Judicial Review 20 Years On- Where Are We Now Blair and Martin, (2005) SLT (news) 31 and 173
67
Supra, Rice & Owen, n45
68
The Lord Gill Review has suggested more specialised courts. See para. 4.28 available at
<http://www.scotcourts.gov.uk/docs/default-source/civil-courts-reform/scccompleter-(2)7CDD54ABAE89.pdf?sfvrsn=2
>accessed 4.2.15
69
Milieu 2007, Country report for Denmark on access to Justice in Environmental Matters
70
C. Redgwell, Access to Environmental Justice in F. Francioni (ed.) Access to Justice as a Human Right (2007) 153 at 155;

70

environmental laws.71 The courts seem to take the opposite view, even at the
EU level, by not granting groups like Greenpeace standing.72 This position is
now different in England where it has been stated that groups like Greenpeace
are permitted to make public law challenges.73 This, however, was not the case
at the time of the Brent Spar,74 which led to a trial by media that forced Shell
to abandon-their-chosen-method-of-disposal.
This was too much for Shell to manage and on June 20th, 1995, they chose not
to dispose the Brent Spar at sea and brought it to shore for dismantling.75 By
dismantling onshore, Shell paid an estimated 45m rather than the initial
76
estimation of 12m. This undermined the UK government who had
supported Shell throughout the process.77 It was also largely accepted that this
changed the political climate against deep-water disposal, which resulted in a
turning point in NSR decommissioning policy.78 It is, therefore, necessary to
look more fully at the reasons why a comprehensive system for RTR should
now occur in the NSR.
A CONTEMPORARY DISCUSSION OF RIGS-TO-REEF
A. ARTIFICIAL REEF PROGRAM: WHY NOW?

The UK Department of Energy and Climate Change (DECC) has claimed that
over 220 oil installations will be decommissioned by 2025.79 It comes as little
surprise, therefore, that the oil and gas sector are voluntarily seeking to more

71
J. Ebesson, Access to Justice at the National Level in: M. Pallemaerts (ed.), Aarhus Convention at Ten (2011) 245 at 247.
72
Greenpeace Stichting Council v. Commission, Case-231/95 ECJ 2 April 1998 Available at http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX:61995CJ0321 accessed 14.11.14
73
Feakins, R (On the Application Of) v Secretary of State for Environment, Food Rural Affairs [2003] EWCA Civ 1546,
2004 1 WLR 1761 See paragraph 20 where there is specific reference to Greenpeace. Available
at<http://www.bailii.org/ew/cases/EWCA/Civ/2003/1546.html accessed 8.11.14
74
Supra, Greenpeace case, n65
75
Supra, Brent Spar Dossier, n21
76
For an overview of cost, inter alia, see http://www.thelawyer.com/brent-spar-a-debate-that039s-all-at-
sea/93924.article> accessed 26.10.14.
77
M. Worcester, Assessing the Public Opinion on the Environment: The Predictable Shock of Brent Spar (National Society
for Clean Air and Environmental Protection, Brighton, 1995).
78
Gage J.D & Gordon, J.D.M Sound bites, science and the Brent Spar; environmental considerations relevant to the deep-sea
disposal option (1995). Mar. Pollut. Bull. 30, 772- 779
79
Department of Energy and Climate Change (2011) Forecast of expected removal dates Available at<
https://www.og.decc.gov.uk/upstream/decommissioning/forecast_rem.htm> accessed 21.11.14
71

systematically and comprehensively manage the full cycle of their operations.80 As
well as this, there has recently been a considerable drop in oil prices,81 which
might force oil installations into closing. This would increase the overall
decommissioning obligations and, as discussed by Oil and Gas UKs economic
director Mike Tholen, decommissioning can cost a fortune. 82 Meaning,
operators are not only concerned with production but also the method that
will be adopted when decommissioning their installation.
The US has acknowledged this and, since the late 1980s, has used RTR as an
accepted method of disposal. 83 Suitably, around 420 platforms have been
converted into artificial reefs in the Gulf of Mexico,84 which demonstrates that
the oil industry, and by proxy the legislature and public, supports this method
of disposal. It is worth mentioning, however, that this only equates to
approximately ten percent of the total number of installations that have been
removed from the Gulf of Mexico.85 Despite this seemingly low number, the
state is willing to allow RTR, as an alternative method of disposal, so long as it
is environmentally sustainable. 86 It is suggested, therefore, that the time is
right for the NSR to develop a comprehensive RTR policy that surpasses the
pre-existing legal framework. However, in an attempt to fully justify this, it is
important to build upon the environmental aspects of RTR.
B. AN ENVIRONMENTAL STUDY
A study was carried out around seven oil platforms, located in the Santa
Barbara Channel area, determining that there was an accumulation of fish
around the foundations of the installations and to remove them would

80
Peter Osmundsen and Ragnar Tveteras, Decommissioning of petroleum installations major policy issues. Energy
Policy, 31 (2003) at p.1579
81
Article in the Guardian concerning falling oil prices. Available at <
http://www.theguardian.com/business/2014/oct/19/oil-price-us-opec-brinkmanship-shale-gas> accessed 19.1.15
82
Ibid
83
Kaiser, M.J and Pulsipher A.G Rigs-to-Reef programs in the Gulf of Mexico (2005) Ocean Dev Int. Law 36, 119-134
84
BSEE, Decommissioning and Rigs to Reefs in the Gulf of Mexico FAQ, available at
<http://www.bsee.gov/Exploration-and-Production/Decomissioning/FAQ.aspx> accessed 21.11.14
85
Kaiser M.J and Kasprzak R. Louisiana adds new reef sites for storm-damages structures. (2007) Oil Gas Journal
86
Ibid

72

endanger the fish that had inhabited them.87 By this logic, environmentalist
groups and policymakers know more about the environmental implications of
leaving an installation in situ than they do about removing it. Installations
themselves have become marine protected areas due to the fact that they can
offer shelter to fish and other organisms.88 This demonstrates that removing an
installation can do more harm than good. Such studies, importantly, have not
been limited to this area.
It has been contended that the upcoming decommissioning surge in the NSR
will provide an excellent opportunity to create an artificial reef policy that will
89
benefit ocean life. Additionally, studies have indicated that a RTR
programme could act as a fish stock safe harbour.90 This is most appropriate
considering that the NSR varies greatly in terms of its geographical
distribution and geological composition.91 In other words, the NSR harbours
dynamic macrofaunal communities, which can frequently be biodiversity
hotspots.92 The addition of a comprehensive RTR system, therefore, is likely to
increase organic connectivity, which could have important biogeographic
results. 93 However, it is not unanimously accepted that RTR is the best
environmental practice.
C. AN OPPOSING VIEW
Quirolo and Charter outline some scientific concerns around RTR. 94 They
provide a comprehensive account of RTR in the Gulf of Mexico and deliver a

87
Milton S. Love, Jennifer E. Caselle, Linda Snook, Fish assemblages around seven oil platforms in the Santa Barbara
Channel area 98 Fishery Bulletin.
88
Schroeder DM and Love MS. Ecological and political issues surrounding decommissioning of offshore oil facilities in the
Southern California Bight. (2004) Ocean Coast Manage 47: 2148
89
Macreadie, P.I., Fowler, A.M., Booth, D.J. Rigs-to-Reef: will the deep sea benefit from artificial habitat? (2011) Front.
Ecol.Environ. 9, 455-461
90
Cripps, S.J., Aebel, J.P. Environmental and socio-economic impact assessment of Ekoreef, a multiple platform rigs-to-reefs
development. (2002) ICES J. Mar.Sci.59, S300-S308.
91
Baco AR and Smith CR. High species richness in deep-sea chemoautotrophic whale skeleton communities(2003) Mar Ecol-
Prog Ser 260: 10914.
92
Ibid
93
Ibid
94
Quirolo, D & Charter, R. (2014) Bring Back the Gulf. Available at <
https://dl.dropboxusercontent.com/u/219083231/BringBackTheGulf/bringbackthegulf-layout-7-24-14-lores.pdf?
Accessed 20.12.14
73

historical view of its development.95 They also offer some useful legal analysis
on what is necessary to qualify for a National Artificial Reef Plan. 96 They
interrogate, however, the very rationality of RTR and, much like Greenpeaces
argument, question whether or not RTR has been created to stop oil
companies having to endure the costly procedure of returning the seabed to its
original condition.97 They highlight, for instance, that in 2009 the oil industry
in the Gulf saved approximately $92m by applying RTR.98
Suggesting, however, that RTR is purely a means of saving the oil industry
money is unreliable since RTR is not only an accepted practice in the Gulf of
Mexico but is also an environmentally sustainable method of disposal in
Brunei, Malaysia and Japan99 thus suggesting they recognise the environmental
benefits. Quirolo and Charter do justify their argument, however, by looking at
some scientific studies that question the environmental benefits of RTR. 100
Nevertheless, most of these studies are very specific in the sense that they only
concern certain characteristics of the Gulf of Mexico and, therefore, cannot be
extrapolated and applied to fit the current debate. Additionally, they accept
that RTR has become an established practice in the Gulf of Mexico 101 and
provide some recommendations on how RTR practice can be improved.102 One
significant suggestion, which will be touched upon in concluding
recommendations, is to include the public in federal decision-making.103
Although Quirolo and Charter make some worthy points, it is suggested that
there are some overwhelming scientific benefits for RTR that should be taken
104
into account. A blanket approach should not apply. Instead, each case

95
Ibid, p.9
96
Ibid, p.29-31
97
Ibid, p21
98
Ibid, p.87-91
99
DecomWorld Report Available at <http://analysis.decomworld.com/projects-and-technologies/rigs-reefs-viable-
north-sea > accessed 16.10.14
100
Supra, Quirolo & Charter, fn.94, pp.19-27
101
Ibid, p.43
102
Ibid, pp.97-103
103
Ibid, pp.99-100
104
Supra, Cripps & Aebel, n90

74

should be independently assessed. It is suggested, therefore, that a multi-
criteria approach is taken,105 which has not been the case in the UK, leading to
a closed door approach to policymaking.
D. PRAGMATISM V POLITICS
RTR has not been explicitly incorporated into UK decommissioning
practice. 106 Jrgensen puts this down to a serious lack of communication
between the scientific community and the policymakers who govern disposal
at sea. 107 The scientific committee, which was advising the appropriate
policymakers, had almost no say in the development of an offshore disposal
policy in the NSR.108 It is suggested, therefore, that policymakers be mindful of
all the science not just the science that supports their political aim as to
ignore it is denying pragmatism in an area where it has the utmost importance.
Shortly after the Brent Spar incident, for example, research was specifically
conducted to investigate the possibility of developing a RTR model in the
NSR, but the policymakers chose to ignore this 109 by going for the more
politically safe method of disposal.110 This is an example of a closed door
approach to policy development, which allows for pragmatism to be defeated
by political resolve. Such an approach can be traced back to the Brent Spar
affair.111 However, over twenty years have passed and now issues of a more
legal nature can be addressed and this can be conducted in a more
encompassing fashion. A discussion, therefore, will take place around
environmental watchdogs that oversee US practice and a case will be made for
a domestic framework that allows for a clearer, and more comprehensive, legal
structure.

105
A.M, Fowler, et al, A multi-criteria decision approach to decommissioning of offshore oil and gas infrastructure Ocean &
Coastal Management 87 (2014) 20-29
106
Supra, Jrgensen, n16
107
Ibid
108
Ibid, p.9
109
Jensen, A.C (Ed.) (1998) Report of the Results of EARRN Workshop 4: Reef Design and Materials. European Artificial
Reef Research Network AIR3-CT94-2144.
110
OSPAR Decision 98/3 Available at <http://www.ospar.org> accessed 11.10.14
111
75

AMERICAN POSITION & CREATING AN ARGUMENT FOR A UK
DOMESTIC FRAMEWORK
A. ENVIRONMENTAL WATCHDOGS
Environmental watchdog groups have attempted to ensure that US
decommissioning practice remains in conjunction with the best environmental
practice, which confirms that operators are adhering to the various guidelines
and regulatory responsibilities. 112 The Coastal Conservation Association 113
(CCA) is responsible for convincing US Congress to grant decommissioning
exemptions to operators who are willing to partially decommission their
installations in order to create artificial reefs that will benefit marine life.114
This allows for RTR on the basis that the installation can become part of a
state-sanctioned reef programme, which results in the operators being granted
a permit by the US Army Corps of Engineers.115 Additionally, groups such as
the Center for Biological Diversity (CBD) supervise operators to validate that
they are acting in compliance with the different environmental guidelines.116
This is not too dissimilar to the function of the DECC that operates in the UK.
However, the DECC is effectively a branch of government so it may not have
the same objectiveness as the CBD. This is evidenced by the fact that the
secretary of state who is the head of the DECC is a Member of
Parliament.117
Having watchdog groups like the CCA and the CBD is helpful in supervising
the decommissioning efforts in the Gulf of Mexico as they can cast an

112
Peter Galvin, Center for Biological Diversity, Press Release, Order to Plug 3,500 Abandoned Wells is a Good First Step
in Cleaning up Mess of Offshore Operations in Gulf, September 15th 2010. Available at
<http://www.biologicaldiversity.org/news/press_releases/2010/abandoned-wells-09-15-2010.html > accessed 20.11.14
113
This organisation attempts to increase coastal biodiversity and assist in building sustainable environments for sea
life
114
This has been codified as 30 USA Code of Federal Regulations 250.1730. For more information about CCA see:
Coastal Conservation Association. Rigs-to-Reefs. (2012). Available at
<http://joincca.org?media%20room/RTR_home.htm> accessed 21.11.14.
115
Ibid
116
For an overview see< http://www.biologicaldiversity.org/programs/oceans/> accessed 20.11.14
117
DECC is a ministerial department, supported by 8 agencies and public bodies. Information available at <
https://www.gov.uk/government/organisations#department-of-energy-climate-change> accessed 21.11.14

76

objective eye that is free from the influence of politics and government.118
The US position on this, however, was intensified by a disaster that juddered
the oil industry into a state of alarm, which heightened the regulations by
placing the oil industry under international scrutiny.
B. ENVIRONMENTAL DISASTERS: PROACTIVE OR REACTIVE?

Decommissioning guidelines and drilling practice, in the US, have been
promulgated by the Horizon disaster, which led to a shift in the temperament
of the public and oil industry.119 Although the incident was not a direct result
of decommissioning, it promoted public support to reform the oil and gas
sector and ensure that decommissioning is carried out in an environmentally
sound way.120
This resulted in significant investments to ensure that more inspectors are

available to assist in developing a more proactive style of regulation. 121
However, this resulted in more spending instead of being prepared, which
would have cost less and, of course, helped prevent a disaster. 122 A more
practical regulatory framework is beginning to emerge,123 but it should not take
a disaster to make this happen. Instead, policymakers should proactively seek
the best practices. This logic can be extended to the NSR due to the upcoming
124
decommissioning obligation. Policymakers should, therefore, be
safeguarding decommissioning practice by developing a domestic legal

118
This might help prevent lobbying
119
Jeff Donn, 3,200 Abandoned Wells Lack Cement Plugs, for a description of the events. Available at
<htttp://abcnews.go.com/Business/wireStory?id=13421924> accessed 20.11.14
120
PR Web, DecomWorld: Gulf of Mexicos Oil and Gas Community to Meet at Industrys Largest Offshore
Decommissioning Summit, Yahoo News (February 21st 2012) available at< http://news.yahoo.com/decomworld-gulf-
mexico-oil-gas-community-meet-industry-152236443.html> accessed 22.11.14
121
$29m in emergency spending See <www.msnbc.msn.com/id/39195347/ns/us_news-environment/t/us-unused-gulf-
wells-must-be-plugged/> accessed 20.11.14
122
Timeline of events, available at< http://www.theguardian.com/environment/2010/jun/29/bp-oil-spill-timeline-
deepwater-horizon > accessed 21.11.14
123
Detailed account of the impact the deep-water horizon disaster will have on US decommissioning policy, see<
http://social.decomworld.com/regulation-and-policy/deepwater-horizon-report-increases-decommissioning-scrutiny>
accessed 24.11.14
124
Supra, Health & Safety, n56
77

framework that encourages RTR to occur since, as demonstrated, it is a safer
method of disposal.125
C. DEVELOPING A DOMESTIC FRAMEWORK

In 1984, the US Congress issued the National Fishing Enhancement Act
(NFEA) with the aim of stimulating commerce whilst also promoting
opportunities for fishermen.126 The aim was to create an artificial reef system
that mitigated the declining US fishery production, which was having a
negative impact on US coastal economies and the biodiversity of the sea.127 The
government felt that this encouraged recreational and commercial activities
whilst also stimulating economic growth.128 This is not too dissimilar to the
NSR where it has been noted that centuries of fishing activity has made it
highly likely that there will be no pristine habitats remaining.129
On this point, OSPAR issued their Quality Status Report, which found that
human activities have placed pressure on the health of marine ecosystems
globally and things like overfishing, destructive fishing, aggregate extraction,
130
and pollution are all on-going concerns. Additionally, the European
Common Fish Policy, which advocates that EU members have equal access to
EU waters, may increase the level of damage being caused to the NSR. 131
Although this is a broader policy issue, it reveals the ostensible support for
RTR in the sense that it would moderate, regardless of how much, the
environmental concerns in the NSR. The reef-forming coral Lophelia Pertusa,
for instance, is a species that is declining, due to mechanical damage by fishing

125
Ibid
126
National Fishing Enhancement Act Appendix B Title II s.202, Findings
127
Ibid Appendix B Title II s.202, Finding and Conclusions
128
Ibid
129
Roberts, C. & Mason (2008) Return to Abundance: A Case for Marine Reserves in the NSR . Report for WWF UK
Available at, <http://www.wwf.org.uk/filelibrary/pdf/marine_reserves_north_sea.pdf> accessed 18.10.14
130
OSPAR, 2010 (Quality Status Report) See p176 Available at< http://qsr2010.ospar.org/en/index.htmk >accessed
18.11.14
131
Regulation (EU) No 1380/2013 Available at < http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:354:0022:0061:EN:PDF> accessed 21.11.14

78

equipment, which is a testament to the point that policymakers should be
doing all they can to mitigate any potential loss of sea life.132
It is possible, therefore, to create an argument that the UK should adopt

domestic legislation that will assist in creating a feasible RTR policy. The
NFEA could be used as a template, which would allow policymakers to
comprehensively evaluate the US position and create a RTR system that could
be properly designed, located, monitored, and managed.133 Creating a clearer
domestic framework could also be a timely measure that could assist the UK in
fulfilling its legal obligations under the Marine Strategy Framework Directive,
which is one of the first all-encompassing pieces of EU legislation that
specifically aims to protect the marine environment.134 Its primary aim is to
achieve Good Environmental Status of all EU waters by 2020. 135 The UK
could assist in this aim by developing a comprehensive RTR model, which
might encourage future investment from the EU. It is important, however, to
briefly address some of the more pertinent legal barriers that would need to
be circumvented when implementing an encompassing RTR framework that
could successfully govern the NSR.
D. OSPAR CONVENTION
It is suggested that implementing an encompassing domestic framework would
prove impossible without consulting OSPAR since it is the principal UK
authority136 and, unlike the US, the UK has international obligations that it
must fulfil.137 The DECC, for instance, declare in their guidance notes that
OSPAR is the most influential set of international laws affecting UK

132
Hall-Spencer, J. & Stehfest, K. (2008) Assessment of Lophelia reefs in the OSPAR area Available at,
<http://www.ospar.org/html_documents/ospar/html/p00423_at%20bdc%20revised%20version%20uk_lophelia.pdf >
accessed 19.11.14
133
This would be following the position found in The National Fishing Enhancement Act Appendix B Title II s.203,
Establishment of Standards.
134
Directive 2008/58/EC
135
Ibid
136
Ridge M. & Style S. OSPAR 1998A Naked Emperor 17 O.G.L.T.R (1999)
137
DECC guidance notes. Available at <https://www.og.decc.gov.uk/regulation/guidance/decomm_guide_v6.pdf> see
p.38 at 8.3. Accessed 12.1.15
79

practice. 138 The Sintra statement records this commitment and operates in
conjunction with the OSPAR convention.139
For the purposes of determining the applicable law surrounding the possibility
of RTR, it is most relevant to start with the OSPAR Convention which came
into force in 1998 by replacing the OSLO and Paris Conventions140 and in
particular Article 5(1) Annex III that provides:
No disused offshore installation or disused offshore pipeline shall
be dumped and no disused offshore installation shall be left
wholly or partly in place in the maritime area without a permit
issued by the competent authority of the relevant Contracting
Party on a case-by-case basis. The Contracting Parties shall
ensure that their authorities, when granting such permits, shall
implement the relevant applicable decisions, recommendations
and all other agreements adopted under the Convention.
This provision excludes the dumping of a disused offshore installation and

prohibits it being left wholly or partly in place without a permit that is
issued by the competent authority. Most importantly, however, it specifies that
Contracting Parties must ensure that, if granting such a permit, they
implement the relevant applicable decisions, recommendations and all other
agreements adopted under the Convention. One such decision was the OSPAR
Decision 98/3. Consequently, this decision is binding when considering
whether or not RTR is possible. However, prior to examining decision 98/3, it
is relevant to assess some of the key provisions surrounding the OSPAR
Convention. This will highlight the main aims of OSPAR and, therefore, cast
light on their approach to protecting the marine environment.
Article 2(1) of the OSPAR Convention specifies that all contracting parties
should take all possible steps to prevent pollution and take any necessary
measures to protect the maritime area against the adverse effects of human

138
Ibid
139
Sintra Statement Available at
<http://www2.unitar.org/cwm/publications/cbl/synergy/pdf/cat3/convention_ospar/convention_ospar.pdf> accessed
14.1.15
140
Available at < http://www.ospar.org/html_documents/ospar/html/ospar_convention_e_updated_text_2007.pdf>

80

activities. This is building on the precautionary principle founded in Article
2(2) which directs that preventative measures should be taken when there
are reasonable grounds for concern that damage may be caused to human
health, living resources, marine ecosystems, or interfere with other legitimate
uses of the sea and the polluter pays principle founded in Article
2(2)(b) which specifies that the costs of pollution prevention, control and
reduction measures shall be borne by the polluter. Such principles appear to
mirror the approach taken in the 1996 Protocol,141 which suggests a unified
approach that can be traced back to shortly after the Brent Spar protest.
It appears that the polluter pays principle and the precautionary principle
are what underpin the legal framework that surrounds OSPAR and the
disposal of offshore installations. Both these principles seem well grounded in
the idea that protecting the marine environment is fundamentally important,
and according to Annex I, Article 1 it is encouraged that operators adopt
the Best Environmental Practice. It is suggested that such aims are in
confliction with a prohibition on RTR due to the environmental benefits it can
bring,142 which perhaps corroborates the claim that the Brent Spar protest has
cast a shadow over decommissioning practice. Accordingly, decision 98/3, and
the reasoning behind the general prohibition on abandonment at sea, will be
assessed.
E. OSPAR DECISION 98/3

OSPAR Decision 98/3 came into force in February 1999143 with the key feature
being a general prohibition on the dumping of offshore installations.144 The
term dumping, however, is not particularly appropriate when considering
RTR because it implies an installation is being abandoned at sea and is serving

141
Supra, 1996 Protocol, n46
142
143
OSPAR Decision 98/3 on the Disposal of Disused Offshore Installations Section 8. Available at<
http://www.ospar.org/v_measures/browse.asp?preset=1&menu=00510416000000_000000_000000&v0_0=&v1_0=title,ref
erencenumber,dateofadoption&v2_0=&v0_1=OSPAR+Decision+98/3&v1_1=referencenumber&v2_1=&v0_2=&v1_2=dat
eofadoption&v2_2=>
144
Ibid, Section 2
81

no purpose, which is not the case.145 Restricted derogations do apply but are
only granted in the case of large steel installations weighing more than ten
thousand tonnes, 146 gravity-based concrete installations, 147 floating concrete
installations, 148 and any concrete anchor-base which results, or is likely to
result, in interference with other legitimate uses of the sea.149 There is a general
presumption, however, that all structures will be removed and, as noted by
Garza and Rock, 150 exceptions will only be granted if the assessment and
consultation procedure demonstrate that there are significant reasons why an
alternative method of disposal is preferable to onshore disposal.151
Creating a legal argument around decision 98/3 is made difficult due to the
fact that it offers very limited derogations and, although only a brief account
has been provided, it is clear that complete removal is the position
favoured.152 However, decision 98/3 does not necessarily apply to platforms that
will be serving another legitimate purpose in the maritime area153 since, as
mentioned, an installation that is converted to a reef is not simply being
dumped. Accordingly, there is room for re-interpretation since there is no
explicit exclusion of RTR. Consideration, therefore, can be given to the
guidelines that oversee artificial reefs in the NSR.
F. OSPAR GUIDELINES ON ARTIFICIAL REEFS

In June 1999, OSPAR issued guidelines on artificial reefs, which contain two
provisions that directly impact the prospect of RTR in the NSR: Paragraph 13
states that No materials should be used for the construction of artificial reefs which
constitute wastes or other matter whose disposal at sea is otherwise prohibited;154 and

145
146
Supra, OSPAR, n140, Annex 1 Section (a)
147
Ibid, Section (b)
148
Ibid, Section (c)
149
Ibid, Section (d)
150
Supra, Hammerson, n27
151
Ibid
152
Supra, OSPAR, n143-148
153
Supra, OSPAR, n140, Definitions 1(b)
154
OSPAR Guidelines on Artificial Reefs in Relation to Living Marine Resources Requirements for Construction and
Placement, Materials 1999

82

Paragraph 14 states that Modules for artificial reefs are generally built on land
unless they consist solely of natural materials placed in an unmodified form.155 It is
important to look, firstly, to the development of these provisions and,
secondly, the wording of them and how they should be interpreted. This will
then be followed by some practical suggestions on how to implement clearer
guidelines.
The debates leading up to the issuing of the guidelines became rather

impassioned with several contracting parties mainly Germany and Sweden
complaining that they created a loophole that oil companies could exploit
in order to dump their installation. 156 This mind-set perhaps demonstrates,
again, the shadow that has been cast by the Brent Spar protest and thus
explains the apparent reluctance to develop a comprehensive legal regime that
governs RTR in the NSR. Such an approach allows for an insight into why the
guidelines are specific in the sense that they only allow virgin materials.
Both paragraphs limit reefing de facto to virgin materials 157 because, as

suggested by Jrgensen, it makes it more difficult to properly implement RTR
in the NSR158 since it restricts them to material that has been unused rather
than promoting, for example, toppling or leaving an installation in situ. The
London Convention Protocol and the United Nations Environment
Programme (LCP/UNEP), who issued their guidelines on artificial reefs in late
2009, take a slightly different view159 by acknowledging the use of obsolete
platforms being used as artificial reefs.160
Unlike the OSPAR guidelines, the LCP/UNEP guidelines allow for waste
materials to be used as artificial reefs and, by not limiting them to virgin

155
Ibid
156
157
F.Minutolo, Beyond the OSPAR exclusion: rigs-to-reefs in the North Sea(2014) I.E.L.R 13
158
159
Guidelines for the Placement of Artificial Reefs (LCP/UNEP, 2009)
160
Ibid, Annex 3
83

materials,161 are promoting RTR in a more expressive fashion. As a result of
this, the UK delegation to OSPAR recently tried to get the language of
OSPARs artificial reef guidelines changed by proposing that they allow for
inert materials.162 This has been forwarded to the Jurists/Linguists committee
with the results still expected.163 It is suggested that if the language is changed
to allow inert materials then more artificial reefs will be utilised. This should
allow decommissioning practice to shift to a position where RTR is an
accepted norm, which will mirror practice in the Gulf of Mexico.
It is important to mention, however, that even if the guidelines are changed,

they are only guidelines and are not technically enforceable law. However, as
discussed by Jrgensen, the guidelines do set the international standard in the
NSR164 and a change in language would, therefore, be welcomed. That being
said, the guidelines and all the aforementioned legal instruments do not
address important issues such as residual and perpetual liability.
LIABILITY & THE NORTH SEA FUND: THE IMPORTANCE OF

IMPARTIALITY
A. RESIDUAL LIABILITY
There is a legislative gap in the international law concerning the liability of
offshore activities.165 The EU attempted to fill this by issuing a directive on the
safety of offshore oil and gas operations.166 Ostensibly, RTR would fall under
such a directive because the installation is being left at sea. However, the
directive is intended to cover environmental damage cases, 167 which RTR
would not fall under since it is a voluntary method of disposal that is made on

161
Ibid
162
163
Ibid
164
Ibid
165
Supra, F.Minutolo, n157, p.11
166
Directive 2004/35 21 April 2004 on environmental liability with regard to the prevention and remedying of
environmental damage
167
Ibid

84

the assumption that the concerned government has authorised it.168 Therefore,
liability after an installation has become a reef will fall outside the scope
of this directive, which means alternative legal instruments have to be
consulted.
There are a number of scenarios, when attempting to determine liability,

which promote uncertainty: if the topside of an installation is removed, for
instance, and the footings are left to form a reef, then there is an imperceptible
danger to passing ships.169 There is no contractual relationship between the
operators, who are responsible for decommissioning, and the potentially
injured pursuer. Hence, when determining liability, the key question is
whether or not the operator owes a duty of care to the pursuer. The UK
approach adopts soft law,170 which means one can look to the guidance notes of
the appropriate legislation 171 when trying to determine the answer to the
aforementioned question.
The guidance notes in the Petroleum Act 1998 indicate that the operator must
provide at least six weeks notice to the UK Hydrographic Office, which allows
mariners sufficient time to make the appropriate amendments to their nautical
charts.172 Hammerson underlines the point that this is an act of publicity,173
which would be in conformity with the international requirements under
Article 60(3) UNCLOS.174 This requires that appropriate publicity be given to
the depth, position, and dimensions of any installations that have not been
entirely removed.175 If the operator did not carry this out then liability would
most likely reside with them. However, even if the installation owner carries
out the requirements under the Petroleum Act and the act of publicity

168
Supra, OSPAR, n140
169
For a full list of risks see Artificial Reef Scotland, Benefits, costs and risks REPORT (2003) Available at<
http://www.nautilus-consultants.co.uk/sites/default/files/Nautilus%20artificial%20reefs%20report_0.pdf> accessed
11.8.14
170
171
Petroleum Act 1998
172
Ibid, guidance notes, paragraph 15.1.
173
174
See paragraph 1.3
175
Ibid
85

under UNCLOS there is still a level of uncertainty in the sense that
ownership has not passed.
This could potentially pose threats to the oil industry accepting RTR as a
viable method of disposal since, as suggested by Cripps & Aabel, the benefits
have to outweigh the costs176 and, if there is any risk of liability, companies will
be hesitant and would rather decommission onshore where liability ends upon
completion.177 However, if liability can be determined through clearer channels
then installation owners might be more eager to adopt this method of disposal.
Such issues are important when trying to justify RTR since, unlike the Brent
Spar disposal, it will normally occur in shallower waters where the risk of
damage is greater than deep-water disposal.178 It is suggested, therefore, that
there be a clear system in place that allows for the ownership of the
installation to be transferred to a competent party.
B. PERPETUAL LIABILITY
There is potential under the Petroleum Act for perpetual liability.179 This is
where all the involved parties are joint and severally liable for the
decommissioned installation. For illustration, under regular practice, the
Secretary of State issues a S29 notice to a list of all the involved parties180 who
are then required to submit a decommissioning programme.181 The recipients
of this notice are jointly liable since the Secretary of State has the power to
enact a liability net182 through S34 of the 1998 Act, which allows through
S34(1)(b) for the power to enforce a duty on persons who did not previously
have one.183 This power has not been used since 1998184 suggesting it is not

176
Supra, Cripps & Aabel, n90
177
Dymond, P. (2006) `Shadow Cast by Decommissioning Liability', International Energy Law and Taxation Review,
August/September: 222-5
178
Booth DJ, Fowler AM (2014) Making difficult decisions Oilfield Technology, 7(11): 77-80
179
Judith Aldersey-Williams, The Decommissioning Cost Provision Deed: facilitating asset transfers on the UKCS (2008)
I.E.L.R 169
180
Petroleum Act 1998 section 29
181
Ibid, section 30
182
Supra, F.Minutolo, n157
183
S34 (2)(a) specifies that such a person must be in accordance with S30 (1) 1998 Act.

86

likely to happen in the near future. 185 However, it also suggests liability in
perpetuity for companies, 186 which may limit industry confidence. It is
suggested, to mitigate such concerns, that government accepts liability for an
installation that has been converted to a reef. The question that arises from
this statement, however, is why would government want to accept liability
when the status quo allows for the owner, and possibly all involved parties, to
be liable? The US position assists in answering this question since it has a
framework that aims to guarantee that liability will be severed so long as
certain legal obligations are fulfilled.
The operators, in the US, donate the installation to the government.187 After
the operator has transported the structure, and properly disposed of it, the
liability then passes to the state.188 This usually takes the form of an agreement
between the state and operator and consists of the state accepting liability
subject to an agreed amount of funds.189 By avoiding onshore disposal, the
operator will have made considerable savings.190A percentage of these savings
are donated to the state to allow for future management, and liability, to pass
to them.191 This will usually form part of the Artificial Reef Development Plan,
which assists with the reefing procedure and the development of a sustainable
reef programme.192 This allows, after the installation reaches the end of its
operational life, for a transfer of ownership to occur.
Although this has only been a brief account of the actual process involved in
the passing of ownership, it is suggested that the US have a worthy model that
the UK could adopt. Transferring ownership should encourage more operators

184
Department of Energy and Climate Change Guidance Notes for Industry: Decommissioning of Offshore
Installations and Pipelines under the Petroleum Act 1998
185
Issac Zauler, et al, Sector focus-The oil and gas sector (2013) 1157 Tax Journal
186
Supra, F.Minutolo, n157
187
Appendix VII of the Donation Agreement For Louisiana Artificial Reef Plan (1985), Act of Donation art.5.5,
Location and Placement
188
Ibid, Article 6.1, Passing of Title
189
Ibid.
190
Supra, overview of costs, n76
191
Supra, n. 187, Article VIII, Acceptance
192
Ibid
87

into donating their installation, which encourages the environmental aspects
of decommissioning 193 whilst also stimulating economic commerce. 194 The
problem that may arise, however, is how the funds are administered.
C. MISHANDLING OF FUNDS & ENSURING IMPARTIALITY

Avoiding liability, through a passing of ownership, is a key ingredient for
stimulating industry investments. However, for this to operate effectively in
the NSR, it is suggested that the UK creates a quasi-governmental body that
ensures a certain level of objectiveness when determining the correct usage of
the agreed funds. In the US, for instance, Governor Bobby Jindal used around
$45m in RTR funds to cover up an overrunning in the states budget,195 which
could lead to the public openly protesting and hence undermine the integrity
of-a-RTR-programme.
Such an event could also weaken the trust between the oil industry and
government.196 By having a quasi-governmental body governing the process,
the risks of this happening should be diminished, which supports the notion
of creating a North Sea Fund (NSF) that operates separately, but under the
auspices of the UK government.
D. NORTH SEA FUND

One of the key aspects of the US position is the fact that around half of the
savings received by the operator are filtered back through the government for
future funding and management.197 If the UK adopts a similar position then the
NSF could be created to manage upkeep and liability costs. This could be
micromanaged by the relevant stakeholders whilst having the infinite backing

193
194
Detailed economic account of artificial reefs see < http://earthmind.net/marine/docs/world-bank-coral-reefs-
valuation.pdf> accessed 14.10.14
195
News story by DecomWorld see < http://social.decomworld.com/regulation-and-policy/lawsuit-threat-renewed-over-
louisiana-rigs-reefs-fund> accessed 20.11.14
196
Billy Broussard, vice chairman of the Louisiana Wildlife and Fisheries Commission noted that this was an act of
dishonesty with the oil industry. See < http://news.yahoo.com/lawsuit-against-jindal-considered-over-183337628.html>
accessed 18.11.14
197
Supra, Louisiana Artificial Reef Plan, n187

88

of government. On this point, the North Sea Initiative is considering different
methods on how to improve the status of the North Sea ecosystem whilst also
developing effective funding mechanisms.198 If the UK adopts the US method
then a legally viable RTR policy can begin to emerge. The key difference,
however, between the UK system and the US system is the NSF would be
governed outside the political framework, thus promoting a separation of
powers between industry and government, which might inter alia stop the oil
industry lobbying government.199
It is also important that those who have practical experience in the industry
can autonomously govern the NSF. This approach allows for sufficient
financial stability and ensures the necessary objectiveness that will safeguard
operators, and the UK government, against any potential backlash from the
public and the various non-governmental agencies that seek to represent them.
Having such a system in place should mitigate any possibilities that there will
be an exploitation of funds and will assist in dealing with residual and
perpetual liability since ownership will have passed over to the NSF.
Although the main aim of the fund is to allow for a transfer of ownership to
occur, it is also suggested that its remit be expanded to proactively ensure that
any risk of an environmental disaster is minimal.200 The NSF, therefore, can
have a multidimensional role that expands into various different aspects of
decommissioning.
OVERALL CONCLUSION & RECOMMENDATIONS

Shell initially denounced what they considered to be a protest of vacuity. An
understandable position to take as they believed they were acting in
accordance with the highest international standards but such complacency
is what partially led to their demise and whilst many could argue that the

198
Living NSR s Initiative project overview. Available at, http://www.forumforthefuture.org/project/living-north-sea-
initiative/overview accessed 19.11.14
199
For discussion of oil industry lobbying government: Supra, Kasoulides, n9
200
Proactive approach: see section 3.2
89

outcome resulted in a good thing, as it stopped the ocean becoming a dumping
pool,201 the evidence indicates that the disposal method was environmentally
the best practice.202 Shell, however, should have had a more open dialogue
between the various different stakeholders. It has been recommended that
transparency is key with the public. It is suggested, therefore, that they be
included in the disposal process through consultations, which can be achieved
through civic science.203 This means that decisions are science-based, but
also built on consultations with the public and experts.204 Issues that concern
standing should also be clearly defined so that trials by media are avoided.
It is the authors view that, within a decade, there will be a change in the
regulations that govern disposal in the NSR. The tide has settled post Brent
Spar and now is the time to evaluate the evidence pragmatically and create an
economically sustainable, environmentally justifiable, and legally viable
framework. Issues concerning liability should, therefore, be clarified through a
passing of ownership. The law governing this area does not comprehensively
cover RTR and the Artificial Reef guidelines are too limited and should,
therefore, be changed to mirror the LCP/UNEP guidelines. Additionally,
issues concerning upkeep costs, liability, ownership, and environmental
prerequisites should be codified into domestic legislation, which will assist in
creating a more encompassing RTR framework in the NSR. There is, however,
international law that poses obstacles to this, which needs further
consideration. 205 It has been demonstrated, however, that RTR, if properly
administered, can provide a win-win solution by being environmentally
beneficial and cheaper to operators. It is hoped, therefore, that this paper has
provided policymakers, the oil and gas industry, and the public with enough
reasons as to why RTR should be fully adopted in the NSR.

201
It may, in the future, be essential to use the ocean for dumping. See n13
202
Supra, McIntyre, n64
203
Huxham, et al, Emotion, Science and Rationality: The Case of the Brent Spar Environmental Values, no.3 (1999): 349-
368. See p.363
204
Ibid
205
Mainly OSPAR 98/3 and the OSPAR Artificial Reef Guidelines

90
DISRESPECTING SOCIO-ECONOMIC RIGHTS THROUGH
TAX EVASION AND AVOIDANCE IN DEVELOPING
COUNTRIES
Philip Folarin* & Emmanuel Oke**
INTRODUCTION
It has been rightly stated that three things are certain in life: death, taxes, and
mankinds unrelenting effort to evade both.1 The problem of tax evasion is not a
recent one. The natural desire of the citizen to pay as small a tax as possible is as
old as taxation.2 While tax evasion inflates the perpetrators wealth, it also imposes
a pecuniary loss on others. The government is directly harmed since it loses
revenue, and fellow citizens are indirectly harmed as they absorb a higher tax
burden to compensate for the evaders unpaid taxes.3
Tax avoidance and evasion both seek to minimize tax payment, the difference
between them being that avoidance pursues legal means to that end, whereas
evasion involves illegality.4 The distinction between tax evasion and tax avoidance
is a question of legal boundaries. Evasion is outside the law whereas avoidance is
not. Tax evasion applies to the deliberate escape accomplished by breaking the
letter of the law while tax avoidance refers to an escape accomplished by legal
procedures which may be contrary to the intent of the sponsors of the law but
nevertheless do not violate the letter of the law.5 Whilst the tax evader breaks the
law, the tax avoider sidesteps it.6
According to Justice Oliver Wendell Holmes in Bullen v Winconsin,

We do not speak of evasion because when the law draws a line, the
case is on one side of it or the other, and if on the safe side, it is none

1
S Klepper and D Nagin The Anatomy of Tax Evasion (1989) 5 Journal of Law, Economics and Organisation p.1
2
LA Buck Income Tax Evasion and Avoidance : Some General Considerations (1936-37) 25 Georgetown Law Journal p.863
3
GS Moohr Tax Evasion as White Collar Fraud (2008-2009) 9 Houston Business and Tax Law Journal p.208
4
KD Deane Law, Morality and Tax Evasion (1984) 13 Anglo-American Law Review p.1
5
G Gilbert, CC Laforteza and L Uriarte International Tax Evasion and Avoidance : Transnational Corporations and States
(1991-92) 66 Philippine Law Journal p.390
6
Ibid
2017, P. Folarin & E. Oke
* Ph.D Lecturer at the University of Lagos & ** Ph.D Lecturer at the University of Edinburgh 91

the worse legally that a party has availed themselves to the full of what
the law permits. When an act is condemned as an evasion, what is
meant is that it is on the wrong side of the line indicated by the policy
if not by the mere letter of the law.7
Also, in the case of Helvering v Gregory, the court held that anyone may so arrange
his affairs that his taxes shall be as low as possible, he is not bound to choose that
pattern which will best pay the Treasury; there is not even a patriotic duty to
increase ones taxes.8 Evasion is regarded as improper, dishonest and
reprehensible. Avoidance, on the other hand, is generally considered to be a sign
of great acumen, perspicacity and skill.
It should be noted however that this careful distinction has been criticised by those
who strongly believe that, economically, avoidance and evasion are substantially
equivalent; it is of little consequence economically whether a particular activity,
transaction or arrangement falls within the law or not.9 Hence, some countries do
not look kindly upon either tax evasion or avoidance practices of taxpayers. These
countries believe that the gain of the tax evader or tax avoider is still the
governments loss.10 As a result, they have adopted measures to curb and punish
both tax evasion and avoidance practices. Malaysia, for example, has gone beyond
merely penalizing escape from the letter of the law; tax avoidance is also frowned
upon.11
The reason may not be far-fetched. The harm occasioned by the practices of tax
evasion and avoidance cannot be overemphasised. Although the problem of tax
evasion is a challenge all over the world, developing countries seem to be more
affected. This is partly due to the fact that they are mostly not well equipped to
detect and curb the sophisticated means employed by individual and corporate tax

7
Bullen v. Winconsin (1916) 240 U.S. 625 , at 631.
8
Helvering v. Gregory 69.F. (2d) 809, C.C.A 2d, 1934.
9
BB Milnes, Tax Avoidance and Evasion: the Individual and Society (Pan Opticum Publishing, London 1979) p.24. A Thompson
Some Thoughts on Tax Avoidance (1978) 128 New Law Journal p.629
10
Supra, G Gilbert, n5
11
Ibid
92
evaders situated in those countries. Tax evasion by big multinational companies

severally limits the capacity of the developing countries to raise their domestic
resources to implement development programs. The present international tax
system has failed to prevent multinational enterprises from avoiding payment of
corporation taxes in jurisdictions where they operate.12 According to the United
Kingdom House of Commons Committee on Public Accounts, it is far too easy
for companies to exploit the rules and set up structures in low tax jurisdictions,
rather than pay tax where they actually conduct their business and sell their goods
and services.13
The World Bank has noted that around $100 billion in tax revenue is lost annually
by developing countries because of transactions directly linked to offshore hubs.
Nevertheless, the total development finance loss is estimated to be between $250 to
$300 billion. Such loss of revenue for developing countries bleeds them of
essential resources.14
The legal practice of seeking to minimise a tax bill by taking advantage of a tax
loophole, adopting an unintended interpretation of tax regulations or out rightly
evading a tax payment are a major component of illicit financial flows.15 According
to an African Union and UN Economic Commission for Africa joint report
conducted in 2014, Africa loses massive financial resources amounting to $50
billion annually through illicit activities of multinationals and wealthy individuals.16
Such activities include tax evasion, money laundering and international bribery.
Over the last 50 years, Africa is estimated to have lost in excess of one trillion
dollars through illicit financial flow alone, a sum that is equivalent to the entire

12
S Darcy, The Elephant in the Room: Corporate Tax Avoidance and Business and Human Rights (2017) 2 Business and
Human Rights Journal p.1-5
13
House of Commons Committee on Public Accounts. Tax Avoidance Google Ninth Report of Session 2013-2014 (2013)
14
Speech by the World Bank Managing Director Sri Mulyani Indrawati- at Event on Tax Evasion and Development
Finance, 17th, April, 2005. Available at http://www.world bank.org/en/news/speech/2015/04/17/speech-wb-md-coo-sri-mulyani-
event-tax-evasion-development-finance.
15
The Report of the High Level Panel on Illicit Financial Flows from Africa -2015. See https://www.uneca.org/content/illicit-
financial-flows-africa-rise.
16
United Nations Economic Report on Africa, 2014. See www.uneca.org/publications/economic-report-africa-2014.
93

overseas development aid received by all African countries during the same period.
According to the report, this loss negatively affects employment, income,
education, and health care. These areas are effective in transforming the economies
of these countries.17
Estimates show that the developing world lost $991.2 billion in illicit financial
flows in 2012, over ten times the amount of the official development aid received by
these countries in that year, and greater than the amount of net foreign direct
investment received.18 Sub-Saharan African countries accounted for 8% of
cumulative illicit financial flows from the developing world during 2003-2012;
South Africa and Nigeria are ranked in the top ten globally.19
In Nigeria, many registered companies are in the habit of not only avoiding taxes
but also evading some. Statistics provided by the Federal Inland Revenue Service
showed that only 120,000 companies, representing 27.7% of the total 440,000 firms
operating in the country, paid any form of tax. The remaining 320,000 have been
evading tax.20 Hence, it is not surprising to note that Nigerias recent rating as third
from the bottom on the 2015 global ranking in Ease of Paying Taxes.21 Nigeria is
ranked 187th out of 189 economies covered by the survey that assessed the time it
takes for a company to prepare, file and pay its taxes, and the total tax liability,
among other things. While the worldwide compliance period is 268 hours, it takes
a Nigerian company 908 hours to comply with tax payment, which is more than
three times the standard benchmark.22 Constraints to prompt payment of tax will
undoubtedly open a leeway to tax evasion.

17
Ibid
18
D Kar and J Spanjers, Illicit Financial Flows From Developing Countries: 2003-2012 (2014) Report by Global Financial
Integrity.
19
Ibid
20
J Inokotong, 320,000 Companies Evade Tax Payment Nigeria Pilot Newspaper, 10 August, 2015.
21
Paying Taxes 2015: The Global Picture, A Report by Price Waterhouse Cooper commissioned by the World Bank. See
https://www.pwc.com/gx/en/paying-taxes/pdf/pwc-paying-taxes-2015-high-resolution.pdf.
22
Ibid
94
INFRINGEMENT OF SOCIO-ECONOMIC RIGHTS THROUGH TAX EVASION

Human rights, especially socio-economic rights, require access to financial
resources. Failure to allocate adequate financial resources can hinder the
enjoyment of the rights to health and education.
Taxation is one of the major sources of finance available to a state. However, if

there is widespread tax evasion, the state would be unable to fully access this
financial resource. Tax evasion can also have a negative impact on economic
development. By constraining the amount of financial resources available, the state
would be unable to allocate sufficient funding towards the development of its
human resources. This, in turn, can hinder economic development. Therefore, for
example, where the citizens of a state cannot enjoy rights such as the right to
education and the right to health, this could impede their development as
individuals. As a result, such a state cannot achieve economic prosperity because
its citizens would be unable to engage in activity necessary for economic
development.
THE RESPONSIBILITY OF CORPORATIONS TO RESPECT HUMAN RIGHTS

Under international law, states have the following obligations:
1) Obligation to respect-States must refrain from interfering directly
or indirectly with the enjoyment of human rights.
2) Obligation to protect-States should take measures to ensure that
their parties do not undermine or violate human rights.
3) Obligation to fulfil-States should take legislative, administrative,
budgetary, judicial and other necessary steps towards the full
realisation of human rights.23
The preamble to the International Covenant on Economic, Social and Cultural

Rights mandates all state parties to recognise that the idea of human beings
enjoying freedom can only be achieved if conditions are created whereby everyone
may enjoy their economic, social and cultural rights. Article 2 of the Covenant
provides that all state parties undertake to take steps to achieving progressively the

23
United Nations Committee on Economic, Social and Cultural Rights, General Comments No.15, 2002.
95

full realisation of the rights by all means, including the adoption of legislative
means. It is imperative to note that Article 5 makes it clear that nothing in the
Covenant may be interpreted as implying for any state, group or person any right
to engage in any activity or to perform any act aimed at the destruction of any of
the human rights. However, these provisions have not directly held companies
responsible for human rights violations. Rather, state parties are simply burdened
with the direct and indirect responsibility of not violating human rights, and not
allowing any of their subjects, which can be individuals or companies, to do the
same.
No mechanism exists at the regional or universal levels that would hold

corporations accountable for violations of international law. However, this does not
mean that international laws cannot be applied directly to corporations if this is
consistent with their obligation to respect human rights.24 Of course, states have a
duty to protect economic and social rights through the adoption of measures that
regulate private actors in order to ensure that they do not engage in conduct that
violates these rights.25
At present, no international treaty exists that would make business enterprises the
subject of international legal obligations. Nevertheless, the Business and Human
Rights Movement emphasizes the inalienable, indivisible and universal rights of
individuals that cannot be violated by any entity.26 Through this movement,
regardless of the profit implications, businesses have an obligation to be aware of
the impact of their actions so as to ensure that the rights of citizens will not be
infringed.

24
Social and Economic Right Action Centre v. Nigeria, Communication No.155/96 2001 A.H.R.L.R. 60
25
O Schutter, Corporations and Positive Duties in the Area of Economic and Social Rights in Eide Riedel (ed) Economic,
Social and Cultural Rights in International Law: Contemporary Issues (Oxford University Press, 2013).
26
J Bauer and E Umlas, Making Corporations Responsible: The Parallel Tracks of the B Corp Movement and the Business and
Human Rights Movement See http://ssrn.com/abstract=2650136.
96
There is a clear international consensus that companies have a responsibility to

respect human rights in whatever jurisdiction they operate. On June 16, 2011, the
United Nations Human Rights Council recognized this responsibility when it
endorsed the UN Guiding Principles on Business and Human Rights. These
principles are structured around the three pillars of the Protect, Respect and
Remedy framework. First of all, it is the states duty to protect against human
rights abuses by third parties, including corporations, through appropriate
policies, regulations and adjudication.27 Secondly, business enterprises have a
corporate responsibility to respect human rights. This means that they should act
with due diligence to avoid infringing upon the rights of others, and address the
adverse effects of their actions.28 Lastly, victims of corporate related abuse should
be afforded greater access to remedy, which could be either judicial or non-
judicial.29 This tripartite framework emphasizes the multi-stakeholder nature of the
issues surrounding business and human rights.
International human rights treaties do not explicitly mention tax. Yet, all treaties
with resource implications are based on the assumption that governments will
allocate resources to meet their human rights obligations.30 Hence, companies that
engage in transfer pricing for the purpose of tax abuse and profiteering are in
breach of international human rights standards. The UN Guideline Principles on
Business and Human Rights requires companies to respect human rights. This
responsibility exists regardless of whether or not the states themselves require
companies to act responsibly. Although tax planning strategies, such as transfer
pricing, are legal, this cannot be used as a defence when a company has knowingly
used the strategy to evade tax, and extract substantial profits at the expense of
developing countries.

27
The UN Guiding Principles on Business and Human Rights: Analysis and Implementation. See
www.kenan.ethics.duke.edu
28
Ibid
29
Ibid
30
Chains of Abuse: The Global Diamond Supply Chain and the Case of the Central African Republic a Report by the
Amnesty International (2015, United Kingdom).
97

The scope of a states duty to protect human rights also includes an extraterritorial
dimension. This is particularly important in the context of business activity. The
UN Committee on Economic, Social and Cultural Rights has clarified that states
have a duty to prevent third parties, such as companies, from violating human
rights abroad. Companies operating across borders can undermine human rights in
other jurisdictions in numerous ways. For example, when the decisions of a parent
company operating in one country leads to human rights abuses by one of its
subsidiaries in another country. Therefore, a state should take measures to prevent
companies incorporated or headquartered in their jurisdiction from causing or
contributing to human rights abuses in other countries. This can be accomplished
though a combination of legal and political means.
CORPORATE ENTITIES SHOULD BE HELD ACCOUNTABLE FOR THEIR

OBLIGATION TO RESPECT SOCIO-ECONOMIC RIGHTS
It is not enough to simply outline and define corporate responsibility to respect
human rights. Rather, it is also necessary to establish an appropriate mechanism
that can be used to enforce this responsibility, and hold companies accountable
when they fail to comply with their human rights obligations.31 For example, John
Ruggies Guiding Principles32 is a mechanism for holding transnational
corporations accountable for their responsbility to respect human rights. However,
this is a voluntary mechanism or soft law, which is not legally binding on
companies.33 As well, voluntary mechanisms are ineffective in preventing human
rights violations and fostering corporate behaviour that promotes human rights.

31
Hunt and Khosla (n 3) 3; Lee and Hunt (n 32) 231; Grover and others (n 5) 237.
32
In his Guiding Principles, Ruggie makes it clear that, Nothing in these Guiding Principles should be read as creating new
international law obligations, or as limiting or undermining any legal obligations a State may have undertaken or be subject
to under international law with regard to human rights. Ruggie, Guiding Principles (n 13) 6. In their critique of Ruggies
Guiding Principles, Vawda and Baker note that, Efforts to put real juridical teeth into the corporate human rights arena
have been fraught with disappointment. The most recent effort resulted in a mandate to Professor Ruggie who proposed a
new Framework for Business and Human Rights in 2008, and Guiding Principles to implement the Framework in 2011.
Ruggies efforts unfortunately merely recapitulate the legal status quo, which contains aspirational frameworks, but no hard
substantive rules or remedial procedures. His 2007 Mapping Report explicitly repudiated earlier claims at the UN that human
rights norms applied directly to corporations. He conceded, however, that there were indirect effects mediated through the
human rights duties of states to regulate private actors, and that there were soft law norms pushing corporations to respect
human rights and to provide voluntary remedies for violations. Vawda and Baker (n 7) 64-65 (internal citations and footnotes
omitted).
33
Grover and others (n 5) 240-243.
98
Furthermore, voluntary mechanisms have failed to provide remedies for affected

individuals and groups as required under international human rights law.34
In June 2014, the UN Human Rights Council adopted a resolution, which was
championed principally by developing countries,35 to establish an open-ended
intergovernmental working group on a legally binding instrument on transnational
corporations and other business enterprises with respect to human rights.36
According to this resolution, the working groups mandate shall be to elaborate an
international legally binding instrument to regulate, in international human rights
law, the activities of transnational corporations and other business enterprises.37
However, it should be noted that the adoption of this resolution was opposed by a
number of developed countries.38 Thus, any future treaty enacted through this
process may not be supported or ratified by developed countries.39

34
Ibid 242.
35
While introducing the draft resolution, Ecuador stated that While companies enjoyed protection, victims of harmful
corporate activities had no legal protection, only voluntary norms. An internationally binding legal instrument would protect
these victims. In the same vein, South Africa stated that it held a strong view that transnational corporations and other
business enterprises often operated in an environment where appropriate national regulations were either totally absent or
very weak. This was thus an important resolution. India also expressed its support for the draft resolution and it stated that
the issue of transnational corporations and human rights was an important area and the international community must
hold corporations accountable for human rights violations arising from their business operations. The Guiding Principles
had a limited field of application and could not provide remedy for victims of human rights violations. The resolution
opened for States the opportunity to discuss the issue of transnational corporations and close important protection gaps. UN
Human Rights Council, Council Extends Mandates on Extreme Poverty, International Solidarity, Independence of Judges,
and Trafficking in Persons - Establishes Working Group to Elaborate an International Legally Binding Instrument on
Transnational Corporations and Other Business Enterprises (26 June 2014)
<http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14785&LangID=E> accessed 31 December 2014.
36
UN Human Rights Council, Elaboration of an International Legally Binding Instrument on Transnational Corporations
and Other Business Enterprises with Respect to Human Rights, A/HRC/26/L.22/Rev.1, (25 June 2014) para 1.
37
Ibid.
38
Some of the developed countries contended that the focus should be on the implementation of the Ruggie Guiding
Principles. According to the US, Individual States had taken a number of steps to implement the Guiding Principles, which
were a success, even though they were only three years old. The draft resolution was a threat to the Guiding Principles. A
one size fit all legally binding instrument was not an appropriate solution for the vast and diverse business field. The UK
stated that, in its view, the Guiding Principles offered the best way forward for dealing with these important issues, taking
into account the needs of citizens and ensuring that they would benefit from economic development. Japan equally
reiterated its commitment to the Guiding Principles on Business and Human Rights and said that their wide acceptance
by a range of stakeholders was an important achievement that needed to be built upon. The international community could
deepen its understanding of the issues related to business and human rights by learning from the implementation of the
Guiding Principles. Ireland also expressed its strong commitment to the Guiding Principles on Business and Human
Rights and stated that, even if much was achieved since their establishment, still more needed to be done. According to
Ireland, An intergovernmental working group was not equipped to discuss the issue of reparation and remedies for victims
of human rights violations by transnational corporations; this needed to be brought to different forums, such as the
International Law Commission, which had technical capabilities, or an intergovernmental group of experts. The issue could
not be effectively addressed by the Working Group and this would jeopardize the implementation of the United Nations
Guiding Principles on Business and Human Rights. UN Human Rights Council, Council Establishes Working Group to
Elaborate an International Legally Binding Instrument on Transnational Corporations and Other Business Enterprises (n
114).
39
The twenty countries that voted in favour of the adoption of the resolution are: Algeria, Benin, Burkina Faso, China,
Congo, Cte dIvoire, Cuba, Ethiopia, India, Indonesia, Kazakhstan, Kenya, Morocco, Namibia, Pakistan, Philippines,
99

Since most transnational corporations have their headquarters in developed

countries, the opposition expressed by these countries to the adoption of this
resolution does not sit well for a treaty that is intended to hold transnational
corporations accountable for their human rights obligations.40 Ruggie expressed
scepticism about the need for an international treaty in this regard. In his view,
there is a certain intuitive and even moral appeal to the idea that there ought to be
one international law governing the conduct of all business enterprises everywhere
under a common set of standards protecting human rights. However, such a treaty
would be too abstract. This would serve little use to individuals who need to
determine whether their human rights have indeed been violated. The crux of the
problem is this: while business and human rights may be a single label attached to
a range of activities, the issues themselves are vast, diverse, and conflicted.
Therefore, such an issue area cannot be governed through a single set of

Russian Federation, South Africa, Venezuela and Viet Nam. The fourteen countries that voted against the resolution are:
Austria, Czech Republic, Estonia, France, Germany, Ireland, Italy, Japan, Montenegro, Republic of Korea, Romania, The
Former Yugoslav Republic of Macedonia, United Kingdom, and United States of America. The thirteen countries that
abstained from voting are: Argentina, Botswana, Brazil, Chile, Costa Rica, Gabon, Kuwait, Maldives, Mexico, Peru, Saudi
Arabia, Sierra Leone, and United Arab Emirates. This implies that the countries that opposed the adoption of the resolution
and those that abstained from voting were more than the countries that supported the adoption of the resolution. UN
Human Rights Council, Council Establishes Working Group to Elaborate an International Legally Binding Instrument on
Transnational Corporations and Other Business Enterprises (n 114).
40
As Ntina Tzouvala points out, given that the states that voted against the resolution are capital-exporting states, where
most of the transnational companies in question are registered, their hostility or reluctance regarding the initiative is a bad
omen for its future. Indeed, even if the treaty is drafted successfully lack of ratification by these states would be fatal to its
efficiency. SNtina Tzouvala, Human Rights and Transnational Corporations: A Step Forward? (Human Rights in Ireland, 30
June 2014) <http://humanrights.ie/international-lawinternational-human-rights/human-rights-and-transnational-
corporations-a-step-forward/> accessed 31 December 2014. Chris Esdaile, A Step Forward? A Sceptical View on the Need for
a New Business and Human Rights Treaty (Open Democracy, 26 May 2014)
<https://www.opendemocracy.net/openglobalrights-blog/chris-esdaile/step-forward-sceptical-view-on-need-for-new-
business-and-human-r> accessed 26 December 2014 (noting that, even if a treaty were agreed, many states would probably
not ratify it. The US which was particularly hostile to the UN Norms has a poor record of ratifying treaties (it has the
dubious privilege of standing alongside only Somalia and South Sudan in having failed to ratify the UN Convention on the
Rights of the Child), and it is unlikely to be alone in objecting to a treaty on business and human rights. A treaty negotiation
process, therefore, would face the very real possibility of ending up with a watered-down set of rules, and a treaty with few
ratifications. The process itself might generate added hostility to the prospect of binding rules on business and human
rights. In short, such a negotiation process may leave us in no better position than we are now.). See further, Frdric
Mgret, Would a Treaty Be All It Is Made up To Be? (James G. Stewart, 4 February 2015) <http://jamesgstewart.com/would-a-
treaty-be-all-it-is-made-up-to-be/> accessed 11 February 2015. For a contrary view see, Chip Pitts, The World Needs a Treaty
on Business and Human Rights (Open Democracy, 26 May 2014) <https://www.opendemocracy.net/openglobalrights-
blog/chip-pitts/world-needs-treaty-on-business-and-human-rights> accessed 26 December 2014 (contending that, Businesses
currently have rights they can legally enforce at a global level, including intellectual property rights (under
the TRIPS agreement), and rights as investors to sue states directly in arbitration tribunals established by bilateral
investment treaties. Yet, individuals whose rights are violated by such businesses have no standing and cannot seek damages
at an international level. Thats an obviously unfair imbalance that requires correction More uniform global standards --
shoring up the playing field at a higher level -- would enhance compliance, reduce risk, and be good for everyone. Such
standards would promote too the integrity and coherence of the global human rights system and of global business activity
Treaties can help establish accountability.). David Bilchitz, The Moral and Legal Necessity for a Business and Human
Rights Treaty (Business & Human Rights Resource Centre, 10 February 2015) <http://business-
humanrights.org/sites/default/files/documents/The%20Moral%20and%20Legal%20Necessity%20for%20a%20Business%20and%
20Human%20Rights%20Treaty%20February%202015%20FINAL%20FINAL.pdf> accessed 23 February 2015.
100
comprehensive and actionable treaty obligations. That is why the principled

pragmatism on which the Guiding Principles rest recommends international legal
instruments that are carefully crafted precision tools.41
CONCLUSION
Tax evasion can hamper the ability of countries to implement programs that can
ensure the enjoyment of socio-economic rights. This failure, in turn, can impede
the development of the capabilities of individuals living in such countries. When
there is no human development, there can be no economic development. While it
is true that the states bear the primary responsibility to respect, protect and fulfil
human rights, companies also have a responsibility to respect human rights, and
should comply with the tax laws of the countries wherein they are operating.
Thus, corporations that engage in tax evasion are not merely failing to comply with
tax laws, they are also indirectly disrespecting human rights, especially socio-
economic rights. Therefore, it is crucial for countries to adopt and implement
measures at the national level to curb tax evasion. In addition, countries need to
incorporate a human rights approach into the enforcement of their tax laws. Under
this approach, tax evasion by business entities with significant financial resources
should not merely be regarded as a failure to comply with tax laws, it should also
be construed as a failure to respect human rights.

41
John G Ruggie, Closing Plenary Remarks (Third United Nations Forum on Business & Human Rights, Geneva, December
2014) 6
<http://www.ohchr.org/Documents/Issues/Business/ForumSession3/Submissions/JohnRuggie_SR_SG_BHR.pdf> accessed
26 December 2014. It should be noted that Ruggie is however not opposed to a treaty addressing corporate involvement in
gross human rights violations. According to Ruggie, I have suggested as an initial step consideration of a legal instrument
addressing corporate involvement in the category of gross human rights violations. I did so because of the severity of the
abuses involved; because the underlying prohibitions already enjoy widespread consensus among states yet there remains
considerable confusion about how they should be implemented in practice when it comes to legal persons; and because the
knock-on effects for other aspects of the business and human rights agenda would be considerable. Ruggie, ibid 7. Jenny S
Martinez, A First Step is Better than No Step At All (James G. Stewart, 3 February 2015) <http://jamesgstewart.com/a-first-
step-is-better-than-no-step-at-all/> accessed 11 February 2015; John G Ruggie, Life in the Global Public Domain: Response
to Commentaries (James G. Stewart, 5 February 2015) <http://jamesgstewart.com/life-in-the-global-public-domain-response-
to-commentaries/> accessed 11 February 2015. But cf. James G Stewart, A New Instrument on Gross Violations?
Enthusiasm and Apprehension (James G. Stewart, 2 February 2015) <http://jamesgstewart.com/a-new-instrument-on-
corporate-responsibility-for-gross-human-rights-violations-enthusiasm-and-apprehension/> accessed 11 February 2015.
101
JUSTIFYING ALCOHOL MINIMUM UNIT PRICING
Graham Horn*
The statement that Scotland has a complicated relationship with alcohol is no longer
particularly controversial. Policy makers in Scotland have long been concerned with the
effect that alcohol has on Scottish society and the public purse.
It will not have escaped the attentions of most that the Scottish National Party has spent
virtually its entire time as the Scottish Government attempting to remedy these issues. The
manifestation of these efforts was the passing of the Alcohol (Minimum Pricing) (Scotland)
Act 2012, which proposed introducing a minimum unit price for alcohol sold in Scotland.
Unfortunately, for the Scottish Government, the legislation has been mired in legal
challenges since its inception. The challenges have centred on the notion that there must be
a balance between a states ability to protect the life and health of its population, and the
intra-EU trading market. The challenges contend that the Scottish Government has got the
balance wrong.
However, there is a degree of light at the end of the tunnel for the Scottish Government. In
October, the Inner House of the Court of Session approved, on appeal, the reasoning of the
Lord Ordinary at first instance in finding that the 2012 Act was compliant with EU law.
However, that is unlikely to be the end of the saga.
HISTORY OF THE LEGISLATION

When elected as the Scottish Government as a minority administration in 2007,
the Scottish National Party made clear their intention to seriously consider the
introduction of a minimum unit price for which alcohol could be sold in Scotland.
The basis for this intention was the perceived link between the price of alcohol and
levels of consumption.1
What is meant by minimum unit pricing is that a base price per unit of alcohol is
set, and that alcohol cannot be sold for lower than that price per unit. By
extension, the higher alcohol content of a particular type of alcohol, the more
expensive it would be. It was posited that this could have the desired effect of

1
Scottish Government (2008), Changing Scotlands Relationship with Alcohol: A Discussion Paper on Our Strategic Approach
<http://www.gov.scot/Resource/Doc/227785/0061677.pdf >
2017, G. Horn
* Solicitor at MacRoberts LLP 102


driving down consumption of alcohol generally, whilst also specifically targeting
the inexpensive and strong alcoholic drinks most often consumed by problem
drinkers.2
In 2009, the Scottish Government published a policy document entitled Changing

Scotlands Relationship with Alcohol: A Framework for Action.3 The Scottish
Government pointed to statistics, which suggested that, in 2009, alcohol was 70%
more affordable in Scotland than it was in 1980.4 This increase in affordability was
linked to a 19% increase in the consumption of alcohol during the same time
period, and a concomitant increase in death and illness.5
On October 31st, 2011, the Scottish Government introduced the Alcohol (Minimum
Pricing) (Scotland) Bill to the Scottish Parliament. The Bill was tabled with a
Scottish Government policy memorandum6, the contents of which had been
informed by a substantial amount of academic research into the potential effects of
minimum unit pricing. The Scottish Government set out in the memorandum that
the underlying aims of the Bill were to help reduce alcohol consumption in
Scotland, in particular reducing the consumption of alcohol by harmful drinkers,
and reduce the impact that alcohol misuse and overconsumption has on public
health, crime, public services, productivity, and the economy as a whole.7
The policy memorandum noted that, in 2010, average alcohol sales were up by 11%
on 1994 levels, mostly driven by off-trade sales.8 These levels of sales were 23%
higher than those in England and Wales, which had seen sales of alcohol drop by
8% since 2005.9 In addition, it was estimated that the cost to the Scottish public

2
ibid pp 18-20
3
Scottish Government (2009) <http://www.gov.scot/Resource/Doc/262905/0078610.pdf>
4
The Substance Misuse Information Strategy Team Information Services Division (IDS Scotland), Alcohol Statistics Scotland
2009 <http://www.ias.org.uk/uploads/pdf/News%20stories/scotland-alcoholstats-2009.pdf>
5
Scottish Government (n 3) p5
6
Scottish Parliament (2011) Alcohol (Minimum Pricing) (Scotland) Bill Policy Memorandum
<http://www.parliament.scot/S4_Bills/Alcohol%20(Minimum%20Pricing)%20(Scotland)%20Bill/Policy_Memo.pdf>
7
ibid para 3
8
ibid para 6
9
ibid
103


purse of this increased consumption was 3.56 billion per year in lost productivity,
health care, and crime.10
The Scottish Government surmised that minimum unit pricing was the most
effective way to drive down consumption of alcohol in Scotland generally, whilst
also targeting harmful and hazardous drinkers.11 The most obvious alternative to
minimum unit pricing is increased taxation. However, this was ruled out as an
option. First of all, the Scottish Government does not have the ability to alter the
tax on alcohol, as this is a matter reserved to the UK Parliament.12 Secondly, EU
Directives 92/83/EEC and 92/84/EEC provide for minimum rates of excise duty on
alcohol, and the methods for calculating them. As such, a system of taxation that
uniformly levied duties on alcohol of similar strengths would not be compliant
with EU law.13 Finally, there is no method of taxation available that would allow for
inexpensive alcohol to be targeted in the same way as minimum unit pricing is able
to.14
One potential issue with increased taxation is that supermarkets could simply
continue to sell alcohol as a loss leader and absorb the increased costs rather than
pass them on to the consumer.15 In these circumstances, the actual price of alcohol
to the consumer would not be affected at all. Further, as increased taxation would
uniformly impact the cost of alcohol across the board, moderate drinkers would be
disproportionately affected.16 By contrast, minimum unit pricing would primarily
impact on the inexpensive alcoholic drinks mostly consumed by harmful and
hazardous drinkers.

10
ibid para 11
11
ibid para 24
12
ibid para 29
13
ibid
14
ibid
15
ibid
16
ibid
104


The Bill was also published with a document known as the Business and
Regulatory Impact Assessment for Minimum Price per Unit of Alcohol (BRIA).17
Whilst the BRIA goes somewhat further in its analysis than the policy
memorandum, it also notes that taxation would not have the effect of targeting
problem drinkers.18 The BRIA states that minimum unit pricing would be
preferable to taxation as it created certainty, was easier to understand and to
enforce, and was not open to absorption by retailers.19 Further, the BRIA noted
that moderate drinkers would not be heavily affected by minimum unit pricing.20
Against this backdrop, the Scottish Parliament passed the Bill, which became
known as the Alcohol (Minimum Pricing) (Scotland) Act 2012 (2012 Act) on May 24th,
2012. The 2012 Act subsequently received Royal Assent on June 29th, 2012. What the
2012 Act does is amend the Licensing (Scotland) Act 2005 by inserting a new clause
6A which sets out that alcohol cannot be sold below the minimum price.
Subsequently, a draft order was published which set out that the minimum unit
price for alcohol would be 50p per unit.21
OPINION OF THE EUROPEAN COMMISSION
In terms of the Technical Standards Directive (98/34/EC)22, the Scottish

Government is required to notify the European Commission of its intention to
introduce minimum unit pricing. Unsurprisingly, many of the countries in the
European Union that produce alcoholic drinks responded negatively to the
notification. The European Commission published its opinion on minimum unit
pricing on September 26th, 2012.23 The Commission noted that there was nothing
within EU law that actively prohibited the setting of a minimum unit price for

17
Scottish Government (2012) Framework for action: changing Scotlands Relationship with Alcohol, Final Business and Regulatory
Impact assessment for Minimum Price per Unit of Alcohol as Contained in Alcohol (Minimum Pricing) (Scotland) Bill <
http://www.gov.scot/Resource/0039/00395549.pdf>
18
ibid para 4.3
19
ibid
20
ibid
21
The Alcohol (Minimum Price Per Unit) (Scotland) order 2013
22
Article 8
23
<http://eurocare.org/content/download/13966/76730/version/1/file/Detailed+opinion+EC+on+MUP_final.pdf>
105


alcohol.24 However, any such minimum price is required to be compatible with
other elements of EU law, such as the free movement of goods.25
The Commission stated that EU case law specifically provided that minimum unit
pricing would fall within the ambit of article 34 of the Treaty on the Functioning of
the European Union (TFEU). Article 34 provides that a member state cannot
impose numerical limits on imports of a product to protect domestic products.
This is a concept known as quantitative restrictions.
However, even if a measure does not directly limit imports, it also cannot have an
effect that is equivalent to such a restriction. In support of this, the Commission
referred to the foundational case of Procureur de Roi v Dassonville26, where the
European Court of Justice (ECJ) noted that all rules which directly or indirectly
hindered inter-EU trade had the equivalent effect to a quantitative restriction.27
In the Commissions opinion, the 2012 Act would not breach article 34 TFEU if it
did not discriminate against imported alcoholic products. However, the
Commission reasoned that the 2012 Act did discriminate against imports.28 In this
regard, the Commission also considered if the Scottish Government would be able
to benefit from the derogation provided for in article 36 TFEU. Article 36 provides
that:
The provisions of Articles 34 and 35 shall not preclude prohibitions
or restrictions on imports, exports or goods in transit justified on
grounds of public morality, public policy or public security; the
protection of health and life of humans, animals or plants...Such
prohibitions or restrictions shall not, however, constitute a means of
arbitrary discrimination or a disguised restriction on trade between
Members States.

24
ibid page 2
25
ibid
26
Case 8/74 Procureur de Roi v Dassonville [1974] ECR 837
27
ibid [5]
28
Case 82/77 Openbaar Ministerie v Van Tiggele [1978] ECR 25
106


The specific derogation that the Scottish Government seeks to rely on is the
protection of health and life of humans. The Commission stated that, in order to
benefit from the derogation, the Member State has to prove that such restrictive
measure is necessary to achieve legitimate objectives and is proportionate to this
aim i.e. the objective cannot be achieved by any other means less restrictive of
intra-Union trade.29 The Commission was not of the view that a minimum unit
price for alcohol would be less distortive to intra-EU trade than increased taxation.
The Commission noted that minimum unit pricing could have a detrimental
impact on the importation of alcohol into the United Kingdom. This would
represent an impact equivalent to a quantitative restriction to the extent that it
prevented the imports lower cost price being reflected in the ultimate retail price.30
In the opinion of the Commission, the 2012 Act breached article 34.
JUDICIAL REVIEW
Shortly after it was passed by the Scottish Parliament, the 2012 Act was challenged
by the Scotch Whisky Association, and other drinks industry bodies, by the
presentation of a petition for judicial review to the Outer House of the Court of
Session. The 2012 Act was challenged on four basic grounds:
1. That the 2012 Act and the draft order setting the minimum unit
price at 50p per unit were both in breach of the Acts of Union;
2. That the 2012 Act is outside the competence of the Scottish
Parliament as it seeks to modify articles 4 and 6 of the Acts of Union
as far as they relate to trade;
3. That the 2012 Act is outside the legislative competence of the
Scottish Parliament as it is not compatible with EU law because:
a. Minimum unit pricing contravenes article 34 TFEU
b. Minimum unit pricing is incompatible with the common
organisation of the market relating to wine, other fermented
beverages, and produced ethyl alcohol in terms of Regulation
(EC) 1234/2007
c. Minimum unit pricing is a breach of article 6(2) of
Regulation (EC) 110/2008 relating to spirits; and

29
Opinion of the European Commission dated 26 September 2012, page 5; Case 50/83 Commission v Italy [1984] ECR 1633
30
ibid pp 4-5
107


4. If the 2012 Act is not within the legislative competence of the
Scottish Parliament, then neither is the draft order.31
A judicial review hearing took place at the Court of Session in January 2013 before
the Lord Ordinary, Lord Doherty. His Lordship delivered his judgment in May
2013, and found entirely in favour of the Scottish Government in rejecting the
Scotch Whisky Associations challenge.
The Lord Ordinary found that, in relation to grounds (1) and (2), neither the 2012
Act nor the draft order sought in any way to restrict freedom of trade or give any
trading preference to traders in Scotland or England.32 The Lord Ordinary was of
the view that neither the Act nor the draft order seeks to modify articles 4 or 6 in
any respect. As such, the petitioners submissions in this respect were without
foundation.
In relation to grounds (3) and (4), the Lord Ordinary noted that it was not disputed
that the 2012 Act and the draft order would contravene article 34 if they could not
be justified in terms of article 36.33 The petitioners argued that European case law
has held that minimum unit pricing could never be justified via article 36.34 The
petitioners also argued that, even if minimum unit pricing was not precluded, the
appropriate justification was not present in this case.35 In support of this
contention, the petitioners noted: (a) the legislation was confused, (b) the aim of
reducing consumption across the board could not be reconciled with the desire to
target hazardous and harmful drinkers, (c) that it was not certain that raising the
price of inexpensive alcohol would reduce consumption by hazardous and harmful
drinkers, and (d) there were less restrictive measures which could be adopted such
as increases in taxation, coupled with bans on below duty plus VAT sales.36

31
The Scotch Whisky Association v the Lord Advocate 2013 SLT 776
32
ibid [22]
33
ibid [28]
34
ibid [32]
35
ibid [33]
36
ibid
108


The Lord Ordinary rejected the petitioners submissions in full. The petitioners
relied on, amongst other authorities, the case of Openbaar Ministerie v Van Tiggele37
in support of the contention that minimum unit pricing could never be justified
under article 36. This case involved consideration of legislation from the
Netherlands, which provided for minimum prices for certain alcoholic drinks and
whether the minimum prices amounted to a quantitative restriction.
The court held in Van Tiggele that a minimum unit price could constitute a
quantitative restriction, or an effect equivalent to one, even where it applied
equally to domestic and imported goods which may be cheaper if,
[A] minimum price fixed at a specific amount which, although
applicable without distinction to domestic products and imported
products, is capable of having an adverse effect on the marketing of
the latter in so far as it prevents their lower cost price from being
reflected in the retail selling price.38
In this case, the court ultimately held that imports may be impeded where prices or
profit margins are fixed at a level that places imported products at a disadvantage.
However, the Lord Ordinary was able to distinguish Van Tiggelle from the present
case by noting that no article 36 or mandatory requirements justifications were
advanced in Van Tiggele, or any of the other cases upon which the petitioners
relied.39 As such, the petitioners contention in this regard was without
foundation.40
With regard to derogation under article 36, the Lord Ordinary made reference to
the judgment of an Extra Division of the Inner House of the Court of Session in
the case of Sinclair Collis v Lord Advocate.41 In this case, the petitioners were a
tobacco vending machine company that challenged the validity of section 9 of the

37
Case 82/77 Openbaar Ministerie v Van Tiggele [1978] ECR 25
38
ibid [18]
39
Case C-287/89 Commission v Belgium Ex p. Bene BV [1991] ECR I-2233; Case C-302/00 Commission v France [2002] ECR I-2025;
Case C-197/08 Commission v France [2010] ECR I-1599; Case C-198/08 Commission v Austria [2010] ECR I-1645; Case C-221/08
Commission v Ireland [2010] ECR I-1669
40
The Scotch Whisky Association v the Lord Advocate 2013 SLT 776, [47]
41
2013 SC 221
109


Tobacco and Primary Health Services (Scotland) Act 2010 which prohibited
tobacco vending machines. The petitioners contended that this prohibition
violated the right to free movement of goods between member states and was,
therefore, incompatible with EU law.
In Sinclair Collis, the Extra Division considered the decision of the ECJ in
Commission v Italy42, where the court noted that the national provision must be
appropriate for securing the attainment of the objective pursued, and not go
beyond what is necessary in order to attain it.43 The ECJ also stated that it was up
to the states to determine the level of protection that they sought to provide, and
the means of doing so.44
The Extra Division held that any measure taken must be both appropriate
(suitable) to secure the objective and necessary as a means of doing so.45 The
court accepted that the measure would not be necessary if there were a less
restrictive means of achieving the same end46, but noted that the state was not
required to prove that there were no conceivable alternatives to the measure.47
The Lord Ordinary reiterated that the aims of the 2012 Act and the draft order were
to reduce alcohol consumption generally, whilst also targeting harmful and
hazardous drinkers, rather than the complete eradication of alcohol consumption.48
In terms of article 36 TFEU, the Lord Ordinary held that these were legitimate
aims. The Lord Ordinary further held that the 2012 Act and the draft order were
appropriate measures to achieve the aims of the legislation given the surfeit of
evidence which points to the relationship between price and alcohol
consumption.49

42
Case C-110/05 Commission v Italy [2009] E.C.R. I-519
43
ibid [59]
44
ibid [65]
45
The Scotch Whisky Association v the Lord Advocate 2013 SLT 776, [56]
46
ibid [58]
47
ibid [59]
48
ibid [53]
49
ibid [58-60]
110


The Lord Ordinary found favour with the respondents submissions in connection
with the necessity of the measures. Specifically, the Lord Ordinary noted that for
minimum unit pricing to be necessary and proportionate, it would have to be the
case that the alternative measures were less effective than minimum unit pricing in
achieving the aims of the legislation.50 The Lord Ordinary stated that increased
taxation would, if simply passed on to consumers, lead to price increases across all
alcoholic drinks. This contrasts with minimum unit pricing, which would
specifically target inexpensive alcohol.51
The Lord Ordinary also reiterated the constraints on using taxation to achieve the
aims of the 2012 Act and the draft order due to Directives 92/83/EEC and
93/83/EEC. As these directives require uniform rates of taxation, there is no scope
for a price cap, and without such a cap, there is no scope to target inexpensive
alcohol.52 On the basis of the information placed before him, the Lord Ordinary
was content that there was an objective justification for derogation in terms of the
protection of health and life in accordance with article 36.
Ultimately, the court held that the measures put forward in the 2012 Act and the
draft order were objectively proportionate. In other words, they were appropriate
and necessary to achieve the aims of the legislation. In the Lord Ordinarys
opinion, the Scottish Government had struck the right balance and was entitled to
utilise such measures to attain the stated aims of the legislation.
Lastly, the petitioners argued that minimum unit pricing was incompatible with
the common organisation of the market in relation to wine, other fermented
beverages, and produced ethyl alcohol in terms of Regulation (EC) 1234/2007. The
petitioners argued that this market fell within the exclusive competence of the EU,
and as such no national measures could be used unless the EU authorised it.53

50
ibid [66]
51
ibid [67]
52
ibid [74]
53
ibid [86]
111


The Lord Ordinary accepted that where a matter had been exhaustively
harmonised by the EU, the state could not act in relation to that matter. The Lord
Ordinary held that agriculture had not been exhaustively harmonised and
remained a shared competence. As Regulation (EC) 1234/2007 does not seek to
regulate price, or deal with the protection of health, the Lord Ordinary was
satisfied that there was no conflict between the regulation and the measures
adopted by the Scottish Government.54
APPEAL TO THE INNER HOUSE OF THE COURT OF SESSION
Following the publication of the Lord Ordinarys opinion, the petitioners duly
appealed his decision to the Inner House of the Court of Session. The petitioners
grounds of appeal were that: (1) the 2012 Act and the draft order represented a
breach of article 34 TFEU, and (2) that minimum unit pricing is incompatible with
the common organisation of the market relating to wine, other fermented
beverages, and produced ethyl alcohol in terms of Regulation (EC) 1234/2007.
A. Reference to the European Court of Justice

Prior to hearing the appeal, the Inner House made a reference to the ECJ in
relation to 6 questions on the interpretation of EU law aligned to the two grounds
of appeal. The Advocate General, Yves Bot, subsequently issued his opinion on
September 3rd, 2015.55
In his opinion, the Advocate General held that the 2012 Act and the draft order
contravened article 34 as they impaired the ability of importers and producers of
inexpensive alcohol to exploit their commercial advantage.56 However, the
Advocate General accepted that there was derogation available under article 36,

54
ibid [92-93]
55
Case C-333/14 The Scotch Whisky Association and Ors v the Lord Advocate and the Advocate General for Scotland [2016] 2
C.M.L.R. 27, Opinion of AG Bot
56
ibid para 5
112


provided that the state showed such measures were appropriate and necessary (i.e.
objectively proportionate).57
The Advocate General was content that the measures put forth in the 2012 Act and
the draft order were appropriate for addressing the stated aims of the legislation.
However, he stated that it was for the Scottish Government to show that increased
taxation would not be sufficient to meet the aims of the legislation.58 In his view,
increased taxation appeared to be more consistent with the aims of the legislation
than minimum unit pricing.
The ECJ issued its opinion on December 23rd, 2015.59 It was held that the
legislation was capable of being a measure having the equivalent effect to a
quantitative restriction as it prevented the price of lower cost products being
reflected in the sale price. The ECJ also held that the derogation in article 36 for
the protection of health and human life would be available if the measure was
appropriate and did not go further than was necessary to achieve the aims of the
legislation.
With regard to the common organisation of the market relating to wine, other
fermented beverages, and produced ethyl alcohol in terms of Regulation (EC)
1234/2007, the ECJ stated that the member states were not precluded from applying
national rules that pursued an objective relating to the protection of health,
provided that such rules were proportionate.60 The ECJ accepted that the
legislation sought to protect health and human life. However, the court stated that
the derogation would not be available if the aims could be achieved by means that

57
ibid
58
ibid para 149
59
C.M.L.R. 27
60
ibid [29]
113


were less restrictive on trade.61 On this point, the ECJ posited that it was their view
that increased taxation was likely to be less restrictive than minimum unit pricing.62
B. Opinion of the Inner House

The Inner House ultimately refused the appeal in its opinion of October 21st, 2016,
written by the Lord President, Lord Carloway.63 The first question that the Inner
House considered was whether or not the Lord Ordinary applied the correct test
when determining if the legislation could benefit from the derogation in terms of
article 36 TFEU.64 The Inner House reaffirmed the position as set out in
Commission v Italy, that a measure had to be appropriate for securing the aims of
the legislation, and could not go beyond what was necessary to achieve those
aims.65 Further, it re-affirmed that the measure would only be appropriate if it
sought to attain the objective in a consistent and objective manner66, and that life
and health could not be protected in a less restrictive way.67 Ultimately, the court
was unable to find any fault with the Lord Ordinarys application of the test as set
out in Commission v Italy68, and re-affirmed the ECJs answers to the reference in
this case.
The second question that the Inner House considered was whether the Lord
Ordinary had identified the correct aim of the legislation.69 The Lord Ordinary
found that the aims of the legislation were to reduce alcohol consumption
generally, whilst also targeting harmful and hazardous drinkers, rather than the
complete eradication of alcohol consumption. His view was the same as that set out
by the ECJ in their opinion. As such, the Inner House was content that the Lord
Ordinary had identified the correct aims.

61
ibid [41]
62
ibid [47]
63
The Scotch Whisky Association and Ors v the Lord Advocate and the Advocate General for Scotland [2016] CSIH 77
64
ibid [167]
65
Commission v Italy [1984] ECR 1633, [59]
66
Sinclair Collis v Lord Advocate 2013 SC 221, [54]
67
C.M.L.R. 27, [43]
68
Commission v Italy [1984] ECR 1633
69
The Scotch Whisky Association and Ors v the Lord Advocate and the Advocate General for Scotland [2016] CSIH 77, [171]
114


The third question before the court was the appropriateness of the legislation for
achieving those aims.70 The Inner House expressed surprise at the petitioners and
appellants position that there was no evidence that a general reduction in a
societys alcohol consumption would have a significant health benefit.71. The court
held that there was ample material for the Scottish Government to rely on to
contend that there was a link between the price of alcohol and consumption.72 It
was noted that the ECJ also found the measures to be appropriate given their role
in a wider political strategy to reduce alcohol consumption and improve public
health. As such, the court could not fault the Lord Ordinary for finding there was
sufficient evidence to infer that minimum unit pricing was an appropriate method
for achieving the aims of the legislation.73
The fourth question before the court was whether the measures were necessary
and if there were less restrictive means of achieving the aims of the legislation. The
court noted that minimum unit pricing would involve setting a floor price, below
which alcohol could not be sold. One of the benefits of this approach is that
hazardous and harmful drinkers would not be able to switch to a cheaper
alternative if the price of their usual drink rose74. The test adopted by the Lord
Ordinary to determine if this measure was necessary was to ask whether or not tax
increases would be equally effective.75 Minimum unit pricing would have to be the
more effective method in order to benefit from the derogation under article 36.76
The Inner House was satisfied that the Lord Ordinary gave due consideration to
the potentiality of increasing taxes in order to achieve the aims of the legislation.77
The court agreed with the Lord Ordinary that increased taxation had no way of
setting a minimum unit price for alcohol, as supermarkets could continue to loss

70
ibid [173]
71
ibid
72
ibid [175]
73
ibid [183]
74
ibid [186]
75
ibid
76
ibid [190]
77
ibid [193]
115


lead with alcohol and simply absorb the increased prices rather than pass them on
to their customers. Retailers or producers would not be able to do this with
minimum unit pricing. The court also noted that a further advantage of minimum
unit pricing is its link to the strength of alcohol (i.e. that it targets inexpensive,
high strength alcohol).78
The court noted that minimum unit pricing was appropriately targeted at
hazardous and harmful drinkers who tend to purchase inexpensive alcohol.79
Increased taxation cannot be targeted in the same way. Ultimately, the court was
persuaded that there was ample evidence, which made out that increased taxation,
even with a prohibition on below cost sales, is less effective than minimum unit
pricing.80
Lastly, the fifth question before the court was whether minimum unit pricing was
incompatible with the common organisation of the market relating to wine, other
fermented beverages, and produced ethyl alcohol in terms of Regulation (EC)
1234/2007. The court held that it was satisfied with the Lord Ordinarys reasoning
on the matter, and that the challenge in this respect fell for the same reason as the
challenges in terms of articles 34 and 36.81
CONCLUSIONS
What the Inner House has, effectively, held is that the 2012 Act and the draft order
strike the appropriate balance between protecting life and health, and intra-EU
trade. This balance lies at the heart of the interplay between articles 34 and 36 of
the TFEU. The court found, without much difficulty, that the Scottish
Government achieved the correct balance in introducing a market distorting
measure in order to achieve the aim of improving public health.

78
ibid [198]
79
ibid [199]
80
ibid [200]
81
ibid [206]
116


Unfortunately, for the Scottish Government, the story does not end here. The
Scotch Whisky Association have taken up the option of making an application to
appeal to the Supreme Court of the United Kingdom. Of course, if they are
unsuccessful in that appeal, it would be open to them to appeal the matter again to
the ECJ.
It may be some time before we see the 2012 Act actually come into force. In the
meantime, the Inner Houses comprehensive judgment provides a useful insight
into the type of analysis that the courts will undertake when determining if
measures taken by the states breach article 34, and what is required to benefit from
the derogation under article 36.
117

APOLOGY AS A FUNCTION OF CRIMINAL JUSTICE
Scot Dignan*
What is called for is greater scope and encouragement for enabling the reparative value
of retraction and apologyreconceiving the available remedies so as to focus more on the
human1
- Justice Albie Sachs
INTRODUCTION: The Im sorry Dont worry, not a problem Paradigm2

The requirement of a post-wrongdoing expression of apology and remorse is
perhaps something that we take for granted within modern society. The word
sorry harbors at the tip of our tongues, ready to ship out at the slightest jostle of
a fellow passenger on a train. From our earliest childhood memories, our response
to any perceived wrongdoing is to utter the fix-it phrase: sorry. It is little
wonder that our response (if any at all) to an apology is equally rarely considered;
such is the usual triviality of the incident. Therefore, what has emerged is a general
social understanding of apology and forgiveness: you do a minor wrong, you
apologise or use the fix-it phrase, and you receive the customary forgiveness, what
Joanna Shapland refers to as the Im sorry Dont worry, not a problem routine.3
The process has devolved from a considered, measured and cognitive exercise in
self-evaluation and re-establishing relationships, into a social nicety. The following
questions therefore emerge: what happens when the incident, the wrongdoing and
the harm grows exponentially? When a wrongdoing breaks the law and necessitates
state intervention? What use is sorry then?
JURISTIC APOLOGY
The origin of the word apology is the Greek word apologia: a formal defence

1
Dikoko v. Mokhalta 2006 (6) SA (CC), 112.
2
Shapland, Forgiveness and Restorative justice: Is it Necessary? Is it Helpful?, Oxford Journal of Law and Religion, 2016, 1.
3
Ibid.
2017, S. Dignan
* Procurator Fiscal Depute at the Crown Office and Procurator Fiscal Service 118


against an accusation; 4 it did not become an expression of sorrow or remorse until
the late 16th century.5 In the formal setting of the courtroom, an apology rendered
by a convicted person is often done through their solicitor. What is evident in this
juristic apology is apologia rather than a display of remorse: it is exercised as a
mechanism of defence on the accuseds behalf, not for the purposes of defending
against an accusation but against a sentence. Juristic apology is a tool of
mitigation.6 Therefore, an apology, as Bibas and Bierschbach claim, should be a
process which evinces: moral lessons, brings catharsis, and reconciles and heals
offenders, victims and society. 7 Yet, the current usage of this juristic apology is
nothing more than a legal fiction, designed to further defend the convicted, or
what is referred to as the individual badness model of apology.8 It excludes those
factors that are required to ensure a restorative apology takes place: a display of
actual sorrow to the party or parties wronged, and an undertaking to prevent future
repetition.9
A juristic apology is arguably open to manipulation and deception by an offender,

and varying degrees of interpretation by the state. Therefore, scholars, such as
Michael OHear, argue that apology should bear little to no impact upon sentence
at all: defendants, victims, and the public deserve rational, meaningful sentences
that are derived from analytical processes open to public knowledge and debate.10
OHear suggests a purely utilitarian consideration of sentence and the removal of
consideration of an apology altogether. Bibas and Bierschbach suggest that the
proposition goes too far; not only is there room for an apology within the criminal

4
Oxford English Dictionary, 7th Edition, 2012, 28.
5
Rather interestingly one of the earliest examples of an apology in its reformed sense of sorrow, is from Shakespeares
Richard III. See- http://www.worldwidewords.org/topicalwords/tw-apo1.htm.
6
In my experience as a former defence solicitor, and I suggest this to be common practice, the apology tendered at the Bar
was not necessarily an explicit instruction. It was rather a pro-forma element of the plea in mitigation. Moreover when asked
to provide advice to clients as to what to do when interviewed by social work Criminal Justice Social Work Report (CJSWR),
the advice becomes almost pro-forma: display remorse and contrition.
7
Bibas, Stephanos, and Bierschbach, Richard A., Integrating Remorse and Apology into Criminal Procedure, 114 Yale L.J. 85
(2004), 89.
8
Ibid.
9
These are the element provided in the progressive definition of apology given in s3 of the Apologies (Scotland) Act 2016,
available here: http://www.legislation.gov.uk/asp/2016/5/pdfs/asp_20160005_en.pdf.
10
OHear, Michael, Remorse, Cooperation, and Acceptance of Responsibility: The Structure, Implementation, and Reform of Section
3E1.1 of the Federal Sentencing Guidelines, 91 Nw. U. L. Rev. 1507, 1553.
119

justice system but that an apology can form an effective part of the criminal justice
process. Nevertheless, [r]emorse and apology are not substitutes for punishment
in most cases, as the restorative justice movement mistakenly contends nor should
they form some kind of mechanism of humiliation in the form of shaming.11
Largely, I agree with their assessment that an apology can form a more integrated
part of the criminal justice process, but as part of a restorative justice (RJ) practice.
However, I disagree with their assessment of the RJ movement supporting an
apology as an alternative to punishment. I would argue this statement is far from
the mainstream thinking of RJ practitioners. In fact, the majority of practitioners
favour a post-criminal justice process intervention, as more in keeping with the
ideals of RJ. Furthermore, the suggestion of a further integrative approach,
including measures such as to make victim-offender mediation more widely
available,12 would be impracticable and potentially harmful to victims. RJ practices
must arise from an admission of guilt. Arguably, OHears model of RJ, at any
stage, may be more acceptable to the American criminal justice system that he is
writing about, due to the large victim discretion in controlling the charges libeled
within that system.
The advantage of a fully integrative approach to an apology in the criminal justice

process is that it brings the RJ process into play at the appropriate juncture,
thereby ensuring the state also receives an apology, on behalf of the public. The
court, however, must do more to ensure this forms part of the restorative process
and not mitigation. This is because it has the potential to serve the offenders need
to apologise and atone for his wrongdoing; what Stephen Garvey refers to as the
offender humbling his will in atonement.13 The disadvantage is that, it arguably
diminishes or sidelines the role of the victim in the apology process, in favour of
the state. It removes the ability of the offender and the victim, as Nils Christie in
his seminal work argues, to own their incident; the process of the state subsumes

11
Ibid at 7, 91.
12
Ibid at 7, 133.
13
Garvey, Stephen p., Restorative Justice, Punishment and Atonement, 2003 Utah L. Rev. 303, 313.
120

the incident. 14
I share Christies concern that the victim is too often sidelined. However, I reject
his premise that the solution is to sideline the state entirely. It smacks of the
Shakespearean, first thing we do, lets kill all the lawyers - far too extreme for my
preferred mode of reform. 15 As well, I share Garveys sentiment that RJ cannot
fully replace criminal justice, but again I fear he overstates that the majority of the
RJ community wish to see this take place. Garvey also gives the grossly false
inference that the RJ apology is the easy way out for an accused; this I cannot
accept. The RJ process (when appropriately deployed) can be a deeply difficult and
emotionally taxing process for an accused person. RJ offers a process of
confrontation, reflection and atonement. This can be more difficult than
incarceration, which offers seclusion from society, no checks on reflection, and
little chance of meaningful atonement in most cases. As a society, we are kidding
ourselves if we believe that when we send people to prison, they sit in their cells
and contemplate their wrongdoing. The convict is a recovering citizen and requires
assistance during their period of rehabilitation. The RJ process provides structured
self-reflection, and enables the convict to find their way to an apology and
rehabilitation.
BEYOND SORRY
In the landmark South African case of Dikoko16, Justice Albie Sachs (perhaps the
most high-profile RJ practitioner and advocate) eloquently argues in favour of the
allowance for an apology to be introduced into the judicial system. Although this is
a defamation case, Justice Sachs indicates that the same principles are applicable
within the criminal law.17 Based on the work of Ann Skelton, who is a prominent
South African jurist, Justice Sachs identifies that the principle of ubuntu-botho,
which acts as an undercurrent within all South African law, is based on key

14
Christie, Nils, Conflict as Property The British Journal of Criminology, Vol. I, 1977.
15
Henry VI, Part II, Act IV, Scene II.
16
Ibid at 1.
17
Ibid at 1, 115.
121

elements of RJ; these elements have been identified as encounter, reparation,
reintegration and participation.18 Similarly to Shapland, Justice Sachs also favours
a less formal space outside the trappings of the court for an apology to take
place.19 Hence, he suggests a model in which the mechanism of apology spans the
gap between conviction and reintegration thereby enabling RJ to become an
integrated part of the criminal justice system.
Shapland argues that an apology from an offender must form part of a two-stage
process in order to be considered restorative. At the first stage, the vertical
apology of the offender to the state must take place. In succession, there is the
horizontal apology between the offender and the victim. When brought together,
this forms a triadic communication of a RJ apology.20 Shapland argues that the
apology is a mechanism for potential forgiveness, but only at the horizontal stage.
At this stage, apology and forgiveness form Hohfeldian correlatives, with the
accused entitled to his gift of apology and the victim entitled to his gift of
forgiveness, neither party being forced to exchange gifts.21 To force forgiveness and
an apology would destroy the moral power of forgiveness, apology or mercy.22
Shapland, however, would seem to inextricably link an apology with forgiveness.
At the vertical apology stage, Shapland argues that the communication is aimed
towards society, not to the victim. 23 It may be argued that this is the integrated
apology as it forms part of the criminal justice process. Shapland, however, would
suggest that this does not form part of the RJ process. This is the opportunity for
the offender to feel public shame in their newly acquired legal label and atone to
the public at large. According to John Braithwaite, this is the uncoupling of
punishment and shame wherein shame is a by-product of the sentence.24 It is, in

18
Ibid at 1, 114.
19
Ibid
20
Ibid at 2, 5.
21
Hohfeldian jural correlatives see Hohfeld, Wesley Newcomb, Some Fundamental Legal Conceptions As Applied In Judicial
Reasoning, Yale Law Journal, Vol. 23, 1913, pp. 16-59, 30.
22
Braithwaite, John, Restorative Justice and Therapeutic Jurisprudence, 38 Crim. L.Bull. 244, 246 (2002), 262.
23
Ibid.
24
Braithwaite, John, Crime, Shame and Reintegration, Cambridge University Press, First Edition, 1989, 59.
122

fact, more akin to harassment, and not the more positive integrative shame, 25
which enables the offender to learn from their experience and is proven to reduce
recidivism. I would respectfully disagree. This forms the beginning of the
integrative shaming process aimed at enabling the accused to formally accept his
guilt.
Shapland dismisses the restorative power of the vertical apology. In her view,
forgiveness is not possible with vertical apologies since [t]he state, receiving [this]
apology,seems bounded by the offence.26 Hence, it does not grant forgiveness.
Whether the state is capable of forgiveness has most commonly been observed
through the states ability to exercise mercy. This creates what is known as the
mercy puzzle in criminal punishment.27
In an exchange of articles revolving around the release of Abdelbaset Ali al-

Megrahi, R. A. Duff and Lindsay Farmer discuss the role of mercy in the criminal
justice system. Duff argues that the purpose of mercy is to temper justice but, at
the same time, it must not go so far as to undermine it. 28 He argues that the
Ministers decision in Megrahi was to allow a merciful impulse to override, rather
than appropriately temper, the demands of justice.29 In this way, the act of mercy
supplanted the states obligation to punish for the crimes committed. In response
to Duffs reasoning, Farmer concurs, there is no relationship between the right to
punish and the right to mercy; justice does not demand mercy. 30 Where he
disagrees with Duff is the normative mechanism used to display mercy, and
whether it was correctly exercised in the case involving Abdelbaset Ali al-Megrahi.
Farmer argues that, historically, the use of mercy was exercised at the exhaustion
of a legal remedy. This has changed since what was once a power which was

25
Ibid.
26
Ibid at 2, 7-8.
27
Duff, R. A, Justice, Mercy and Punishment, Sept. 2009, 1.
28
Ibid, 2.
29
Ibid, 4.
30
Farmer, Lindsay, Mercy and Criminal Justice; a reply to Antony Duff, Criminal Justice Scotland, Nov. 2009, 2.
123

beyond the law has become legally regulated by statute. 31 The executive acted
lawfully and within the remits of justice in exercising this legal power. Regardless
of whether the use of the power was right or wrong, Farmer suggests that we
demur to our respective higher powers. 32
In many respects, I agree with Farmer and Duff33 in regards to the role of mercy
within the criminal justice system. However, this role should be viewed as being
separate from the role of forgiveness. The states ability to forgive should not be
confused with its ability to exercise mercy. This is because forgiveness can be
exercised independently from a display of mercy. Mercy, on the other hand, is a
particular action of the state. Such an action is binary, and there is a normative
mechanism through which the state may engage it. In my view, forgiveness is a
fundamental principle of the rehabilitative criminal justice system, not a binary
decision; it can be in part, and in small stages. Therefore, I disagree with
Shaplands assessment of the states capacity for forgiveness. As previously
mentioned, during sentencing, the state will take into consideration displays of
contrition, and carry out the sentence of an accused whilst also taking active steps
towards forgiveness.
For example, forgiveness takes place when the state grants an inmate early release
from incarceration. This decision is based on the offenders physical manifestation
of apology or atonement, repentance and reform. Hence, following an apology, if
the offender maintains good behaviour and good performance without any new
problems being reported, the state may decide that there is no need for further
punishment. The states capacity for forgiveness is inherent within its restraint in
chastisement. Justice Sachs indicated that the state deploys soft vengeance of a
just society.34 In this way, progress towards forgiveness and rehabilitation can take
place. Even so, this does not suggest that when the state forgives, it forgets. Rather,

31
Ibid.
32
Ibid, 4.
33
Duff, R. A, Justice, Mercy and Criminal Justice: A Response to Lindsay Farmer, Dec. 2009, 1.
34
Quote attributable to Justice Albie Sachs, University of Strathclyde event Justice Albie Sachs Seminar for Strathclyde PG Law
Students, 3rd December 2014.
124

the state takes the approach of the wise since the wise forgive, but do not forget.35
The horizontal apology is a much more intimate form of apology as it takes place
between the victim and the offender. 36 According to Gerry Johnstone: [i]t is
crucial to the success of restorative conferencing that authentic apology,
forgiveness and reconciliation take place. 37 Johnstone, however, overstates the
role of forgiveness. Based on Shaplands research with RJ conferencing in England
and Wales, 62% of RJ conferences resulted in an apology, whereas very few ended
in forgiveness, or even referred to the word forgive.38 Horizontal apology at RJ
conferencing provides the opportunity for a direct apology to the victim.39 Also,
there is no need to persuade offenders to apologize. Shapland implies that
offenders, as part of their reform, have a fundamental need to apologise out of
their own free will, which is indicative of Braithwaites integrative shame.
Conversely, there are a large number of victims who simply wish to understand the
harm caused to them, and thereafter have a desire to mitigate potential harm to
others by reducing recidivism in their offenders. With this mindset, it becomes
apparent that there is no need to show forgiveness. Johnstone argues that
forgiveness is not a realistic expectation since victims are simply not saintly
enough to waive quid pro quo justice. 40
Certainly, the empirical evidence would suggest that saintliness might indeed
increase the likelihood of forgiveness, as those that are religious are more likely to
use terms such as forgive.41 However, this is a somewhat cynical observation. I
would resist a binary application, in terms of an absolute forgiveness or an absolute
rejection. Forgiveness is far too complex a human process to be weighed down in
absolutes or quid pro quo since it is much more nuanced than that. According to

35
Quote attributable to famed American Psychiatrist Thomas Szasz.
36
This may include the victims family and friends.
37
Johnstone, Gerry, Restorative Justice, Routledge, 2nd Edition, 2011, Chapter 6, 109.
38
Ibid at 2, 10-11.
39
Ibid at 2, 10.
40
Ibid at 27, 110.
41
Ibid at 2, 11.
125

Shapland, forgiveness has further roles after an unqualified apology through RJ.
Forgiveness can be of ones self since self blame by the victim is just as much a
common reaction as blaming the offender. In this way, forgiveness serves the
victim whilst apology remains important during the RJ process.42
Finally, the horizontal apology has a more nuanced role. Although the offender is
the one who gives the apology, this act serves the interests of both the victim and
the offender. When an apology takes place during RJ conferencing, this is not
simply a conduit to forgiveness. Rather, the effect of the apology goes even further.
It enables the offender to unburden themselves of their former act, and begin the
process of reintegration into society. It is the latter process that completes the
triadic communication, which links the offender back into society. Therefore,
even if forgiveness is not achieved, the tripartite process is still enabled and society
is satisfied. As a result, the victim has a greater understanding of the harm caused,
and the accused has started to reintegrate back into society. This clarifies that
forgiveness is not at the heart of the RJ process. Rather, the apology is seen as
central to the process of restoration. 43
LIMITS OF APOLOGY
An apology should be given without limit - that is to say unconditional, unreserved
and unequivocal in its admission of guilt. However, the act of giving an apology as
a function of RJ has been criticized for being limited. This is because, in some
cases, an accused person should not be entitled to offer an apology, even of the
appropriate standard and with the consent of the victim. Certain crimes, such as
domestic violence, are beyond apology. 44 Julie Stubbs argues that in crimes
wherein the act of apology forms part of the modus operandi of the accused, it
would be immoral to allow an accused to perform the apology ritual. If this
occurred, the apology would form part of the accuseds recidivism, to buy back

42
Ibid at 2, 3.
43
Sherman, Lawrence and Strang, Sherman, Repairing the Harm: Victims and Restorative Justice, 2003 Utah Law Review
Vol. 15, 28.
44
Stubbs, Julie, Beyond Apology? Domestic Violence and Critical Questions for Restorative Justice, Journal of Criminology and
Criminal Justice, Vol.7(2), 169-187.
126

favour, 45 rather than rehabilitation.
As a prosecutor who has tried numerous domestic abuse cases, I can understand
the problems that could result from an apology. However, I would argue that no
crime is beyond apology, and abandoning this principle would abandon the belief
not just in RJ but also in rehabilitative justice. An apology should be accepted as
more than the act of sorry and a simplistic conduit to forgiveness; it is an
invaluable tool for offender acceptance, reflection and reform. Only then can it be
deployed with any crime. Nevertheless, like any hardware, apology is dangerous in
the unpracticed hands. Hence, it is the role of the experienced RJ practitioner to
guide the process and ensure safety - groundwork is key. 46
CONCLUSION: AS RIGHT AS POSSIBLE46

Apology is not, in and of itself, a solution. Nor is it a means to an inevitable end.
The act of an apology, when properly understood and applied, is an integral
function within the criminal justice system. Apology enables acceptance, reflection
and reform by the offender post-conviction. As indicated by Shapland, an apology
is a two-stage process that leads to the triadic communication between three
essential parties: the state, the offender and the victim. Although apology can be
applied either vertically or horizontally, it must be equally important at both stages
in order to be utilized as a tool of RJ. For this reason, it is essential that apology be
further integrated, at the vertical stage, into the criminal justice system. Hence, we
must create a greater (and safer) space for apology within the traditional criminal
justice system. I disagree that the apology is the means to a set end - namely
forgiveness. Forgiveness has its own independent role to play at both the vertical
and horizontal stages. However, they are not inextricably linked. The concept of an
apology not necessarily the act of giving it is essential to the RJ process,
forgiveness is not. To paraphrase Alexander Pope: [t]o err is human, to apologise
human, to forgive; divine.

45
Ibid, 177.
46
Zehr, Howard, The Little Book of Restorative Justice, Good Books, 2nd Edition, 2014, 36.
127
THE EDINBURGH ALCOHOL PROBLEM COURT
Sheriff Frank Crowe*
This pilot project commenced at Edinburgh Sheriff Court in February 2016 with the
aim of tackling petty persistent offenders who were suffering from chronic alcoholism.
BACKGROUND
In 2014, the Lothian and Borders Criminal Justice Board applied to the Scottish
Government for funding to run a community-based scheme dealing with
persistent offenders. It was recognised that such individuals were responsible
for significant levels of crime and took up disproportionate court time in
dealing with their cases in a piecemeal fashion.
Unfortunately, this application was unsuccessful and funding was given to the
Grampian area that has been running a scheme in Aberdeen. This was
principally directed at female offenders who are at high risk working in the sex
industry to fund a drug habit.
Around this time, I attended a Judicial Institute Training Course on Problem

Solving Courts. This was where I heard a talk by a judge from the United States
of America, who had founded a no cost/low cost problem-solving court
designed to reduce offending and recidivism by tackling the offenders
problems.
I tried to formulate such a scheme but realised I would require the assistance of
the Scottish Courts and Tribunal Service, Social Work Department and NHS
Lothian. My original plan to obtain drugs/alcohol/mental health counselling for
2017, F. Crowe
* Sheriff at the Edinburgh Sheriff Court 128
certain repeat offenders was designed to tackle the courts problems, as much
as those of the individuals accused.
THE ALCOHOL PROBLEM COURT

Gradually over various e-mail exchanges and meetings, we drew up the pilot
project. This was initially for 20 male offenders resident in the Edinburgh area
that were regularly appearing in court on summary complaint, charged with
offences of dishonesty or public order which seemed to be linked to a chronic
alcohol-problem.
My colleagues advised that such an initiative was in keeping with Scottish

Government policies to tackle alcoholism and improve health. Around this
time, the Edinburgh Council Social Work Department signed an agreement
whereby the charity Lifeline would deliver local support and advice from hub
offices in the city located at Muirhouse, Leith, Craigmillar and Wester Hailes.
The pilot has initially been restricted to male offenders living in Edinburgh as
it was hoped that most would progress from one-to-one counselling to group
sessions which are all male.
During the course of the pilot, one or two female offenders emerged, who
would otherwise fit the profile but were diverted to the women-only Willow
Project, which is best placed to tackling their specific needs.
Those offenders who came to the courts attention had to be suffering from a
long-term alcohol problem rather than binge drinking. My shrieval colleagues
in Edinburgh agreed to refer possible candidates to me who could then be
assessed. Where appropriate, they would be placed on a Community Payback
129
Order (CPO) of 12 to 18 months duration with a condition to attend for alcohol

counselling and regular reviews by me at court at roughly 6-week intervals.
Those involved in domestic abuse incidents are not normally considered

suitable for an alcohol assessment as we do not wish for alcoholism to be used
as an excuse for this type of behaviour. However, in certain cases where an
offender is determined to be unsuitable for undertaking a domestic abuse CPO
due to alcohol problems, they may be taken on as a first step towards later
domestic abuse work.
Much of this methodology has been borrowed from the approach adopted in
drug treatment and testing orders. Experience has shown for best outcomes the
assessment should be done in 7 days so that treatment can be offered quickly
before further offences are committed. I myself have conducted the reviews to
provide continuity for the offender and see how progress is being made in
contrast to other similar cases. Social work provides detailed 2 page updates
informing whether attendance at the local hub has taken place. These also
served to highlight the quality of the contact, and provide an indication of the
progress being made.
THE-COHORT
The offenders tend to be in the 30-60 age bracket. Most are unemployed and
some are in poor health as a result of substance abuse. Two of the men placed
on orders have since died, one suddenly after a heart attack not long after a first
review at which he had being making good progress, the other was found dead
at home between reviews. I have received no further details in either case but
assume the deaths were linked in some way to their alcohol problems. In
another case, the accused has been given a terminal diagnosis due to his
130
drinking problem and one or two others present poorly as alcohol abuse has
caught up with their health in their 50s and 60s.
Two of the men have been sectioned during the course of orders due to mental
health problems relating to their substance abuse and, in one case, the order
had to be terminated as the individual is now a compulsory patient.
In other cases, repeat offending led to orders being revoked due to

imprisonment for other matters. In one case, the accuseds order was
suspended as he has been remanded for willful fire raising. In total, 5 orders
have had to be revoked but good progress is being made in the other 13 places.
THE-OFFENDERS-MIND-SET
It is perhaps too small a sample to be drawing conclusions at this early stage
but it is clear that, in most cases, where alcoholics appear in court, they express
a wish to free themselves from their addiction. Many will try to manage the
problem by seeking a prison sentence, which often is a short one of a few
months duration or they will accept a period of remand in custody before
pleading guilty. These interruptions in the routine of drinking do lead, in many
cases, to an immediate improvement in health and perhaps a chance to take
stock but often give brief respite to the continuing problem. Others with the
same problem will seek admission to the Ritson Clinic, part of the Royal
Edinburgh Hospital where alcoholics are admitted as in-patients for a period of
a week to 10 days in order that they can have a controlled alcohol detox before
being put on an Antabuse prescription, which will make them feel sick if they
resume drinking. NHS Lothian run the LEAP Project for recovering drug and
alcohol addicts based at the Astley Ainslie Hospital with supported
accommodation provided nearby. This is a very successful scheme but is only
131
open to those who are stable and no longer drinking or abusing drugs on a
daily basis.
These initiatives have long waiting lists and it is to be hoped that offenders on
an Alcohol Court order making good progress will be given some priority at the
appropriate time to attend the Ritson Clinic or LEAP when meeting their
criteria.
For chronic alcoholics, health problems will begin to surface after a period of
abuse, perhaps a decade or two. Such ailments include hepatitis C, stomach
ulcers, delirium and Korsakovs syndrome to name but a few. In some
instances, the offender has also been deemed unsuitable for the order due to
advanced mental health problems, which make regular attendance at meetings
unlikely and/or problematic.
CONCLUSIONS
One must be wary with such a small sample over a short period but it is
refreshing to see that, in most cases, the orders are progressing well with good
attendance, abstinence or significantly reduced drinking and re-offending.
While the drug treatment and testing order appointments/support/review
model has proved to be useful, the problems thrown up by alcoholics differ
from drug abusers. Many lead fairly solitary lives having been abandoned by
friends and relatives, and it is to be hoped that improvement on the order will
enable them to re-establish links with friends and families. I detect that
compared to drug addicts where the nature of the problem necessitates regular
contact with other addicts, some of these alcoholics have gone past the stage of
being drinking companions and drink alone having underlying social and
psychological inadequacies.
132
The project will be reviewed early next year, and consideration can be given to
see whether it should be expanded to the rest of the Edinburgh Sheriff Court
area in Midlothian and East Lothian where MELD, the locally based addiction
hub operates.
It remains a small scheme with on average 4 to 5 cases calling a week either as

potential assessments or progress reviews. These cases are fitted into my
normal days court. I do consider the scheme has provided a sustainable way to
tackle certain repeat offenders drinking problems so as to reduce or stop their
offending and help them back to normal health and a more fulfilling life. I am
pleased that, in one case, an offender has used the support of the order to
resume working in a skilled occupation and remain drink free.
133

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THE EDITORIAL BOARD

The Right Honourable Dame Elish Angiolini

The University of Strathclyde is of particular importance to me, as it was through

THE EDITORIAL BOARD

I argue in this paper that there is a need to end prosecutions of non-disclosure in

INTRODUCTION TO EXISTING LAWS SURROUNDING NON-DISCLOSURE

After the original decision in R v Cuerrier5 followed in 2012 by R v Mabior6, in

The criminalisation has only resulted in discouraging individuals from getting

Correspondingly, there is a massive stigma that surrounds the diagnosis of HIV.

Although Aziga is a rare case where an individual intentionally transmitted HIV,

In an unreported case documented on aidsactionnow.org16, a committed

SOCIAL AND ECONOMIC IMPACTS OF PROSECUTION

THE FUTURE OF CANADIAN HIV/AIDS DISCLOSURE LAWS

The true reason for criminalisation may be the societal expectation of

Abubakar Bukar Kagu*

2017, A. Bukar Kagu

In an elaborate discussion of the decision theory, Bibas presented the shadow of

In understanding, these extended factors discussed by Bibas, one also has to

COMPROMISING CRIMINAL JUSTICES BEST PRACTICES: A CRITIQUE

It is important however to have a retrospective look at the development of criminal

Most problematic is the situation of accommodating bureaucratic and corporative

The field of criminal justice is witnessing an emerging conflict between the

LEGAL PHILOSOPHICAL CONSIDERATIONS OF

Legal Theory classifications are merely labels of convenience. When researching

LAYING OUT THE LEGAL ENVIRONMENT AND SOME KEY LEGAL

In the regulation of sexual services, prohibitionist approaches are generally

Legal theoretical questions that can be found in the foreground of prohibitionist

Abolitionism describes approaches in which a set of policies do not

The legal theoretical concerns found in the forefront of abolitionist approaches

Regulationism is a term used to describe a set of policies, which criminalises

Legal theoretical approaches to regulationism often follow the ideas of libertarian

What is the nature of law? How are laws determined?

Legal Critical Legal Legal Realism

Critical Race Feminist Legal American Scandinavian

EXPLORING THE LEGAL THEORETICAL VIEWS ON PROSTITUTION

In Platos Symposium,18 he focussed on the passion to possess the good and

A few decades later, Aristotle26 confirmed these thoughts in relation to philia

According to these Aristotelian natural law doctrines, it is logical to deduct from

higher status in the prostitution hierarchy.31 Thus, according to Aristotle, this

Kants philosophical approach has been incorporated into several contemporary

(I) DETERMINING THE NECESSITY OF PROSTITUTION LAW UNDER

Instead of determining the self-inflicted harm as resulting from the indulgence in

in relation to prostitution at an early stage of jurisprudential research in

When considering the above characteristics, it may be difficult to pinpoint the

threats of punishment. Accordingly, the rule of reason is a social rule, which

(I) DETERMINING WHY PROSTITUTION LAWS SHOULD BE MADE:

consequentialists believe that "the ends justify the means.74 Accordingly, if a

Consequentialism feeds into the realm of paternalists and other representatives of

One of the more significant sub-categories of Consequentialism is Utilitarianism.

As aforementioned, Jeremy Bentham has been attributed to the Utilitarian School

It is of significance in relation to prostitution, that Bentham acknowledged in these

woman incompatible with the natural inconstancy of men85 and Rousseau,

In regards to prostitution, Bentham recognised similar distinctions between forms

sense, he proposed to implement legislation which would exclude men from

One final point to be mentioned, which may be of significance in the examination

married women. He proposed these places to constitute a safe place of