R v McNally case review

R v McNally

The brief facts of R v McNally were as follows: Justine McNally was born with female genitalia but wanted gender reassignment surgery to become physiologically male. McNally communicated online with the complainant for more than three years. Whilst online McNally used a male avatar, presented herself as male and talked about having a romantic future, marriage and family with the complainant. The complainant and McNally engaged in sexual conversations, over the phone, which included McNally telling the complainant she would ‘put it in’ which the complainant took to mean McNally’s penis. When McNally first met the complainant in person, she was dressed in male clothes and was wearing a strap-on dildo under her trousers. The complainant and McNally went on to meet on four occasions. During two of those meetings, McNally penetrated the complainant’s vagina digitally and orally. On one of those occasions, McNally and the complainant were in a dark bedroom when McNally rubbed the complainant’s vagina and performed an oral sex act upon her, McNally then retrieved condoms that she had purchased with the intention of having sexual intercourse. The complainant alleged that her vagina was penetrated with a dildo but this count was left to lie on the file before the case reached the Court of Appeal. When all of these sexual acts took place McNally was 17 years old and the complainant was 16.

In December 2012, at the Crown Court, McNally pleaded guilty to six counts of assault by penetration and the further allegation involving penetration with a dildo was ordered to remain on the file. McNally was sentenced to three years’ imprisonment in a young offender institution and a restraining order was granted against McNally for the protection of the complainant and the complainant’s mother. In 2013, McNally appealed her conviction and sentence to the Court of Appeal.

The Court of Appeal dismissed her appeal against her conviction but reduced her sentence from 3 years to 9 months’ detention in a young offender institution suspended for 2 years and granted a 2-year supervision order. McNally appealed her conviction on three grounds:[1]

 (1) that her legal advisers failed to advise her correctly on matters that went to the heart of her plea; because

(2) the elements of the offence were not made out and she could not have been convicted; with the result that

(3) her plea was equivocal.

The key ground to consider for the purpose of this report is ground (2).

The Court of Appeal affirmed that ‘depending on the circumstances deception as to gender can vitiate consent.’[2] The Court of Appeal explained that, physically, assault by penetration of the vagina is the same whether committed by a male or female. However, the sexual nature of the penetration is different ‘where the complainant is deliberately deceived by a defendant into believing that the latter is a male.’[3] On this rationale, the Court of Appeal explained that the complainant’s choice ‘to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the defendant's deception.’[4] If a transgender defendant’s deception as to their gender removes the complainant’s ability to use their own freedom and capacity to consent to engaging in sexual activity then the complainant’s consent is vitiated.

With regards to sentencing, the Court of Appeal found that: McNally did not abuse the trust of the complainant and therefore ‘the starting point set out in the guideline for an offence involving penetration with a body part, committed when a victim is 16 years old or over is two years’ imprisonment with a range of one to four years.’ [5] The Court of Appeal went on to find that the context and personal circumstances of McNally, including self-harm and confusion over her gender identity and sexuality, demonstrated ‘features of mitigation.’[6] This led the Court of Appeal to sentence McNally to ‘a sentence of nine months in a young offender institution, suspended for a period of two years, together with a suspended sentence supervision order also extending for two years.’[7] The rationale for this was that although, the custody threshold had been exceeded, McNally had served just under three months of a custodial sentence imposed by the Crown Court. The Court of Appeal explained that the new sentence would allow McNally ‘to receive the help that she so clearly needs.’[8]

Deception and gender identity

In cases where a transgender defendant has deceived a complainant as to their gender identity, a clear understanding of gender identity and gender dysphoria is needed. Gender dysphoria is ‘a condition where a person experiences discomfort or distress because there's a mismatch between their biological sex and gender identity.’[9] The key question, in sexual offence cases where a transgender defendant has deceived a complainant as to their gender, is: how can one accuse a transgender defendant of being deceptive in a case where they have merely portrayed the gender identity that they believe is their true gender identity?

Article 8 ECHR

The key right engaged in these cases is article 8 ECHR.[10] Sharpe argues that transgender people should not have to reveal their gender history in order to engage in consensual sexual activity. Consequently, it could be argued that to convict a transgender person of a sexual offence because they did not reveal their gender history could breach their article 8 ECHR rights.[11] Sharpe explains that coupling transgenderism with impersonation, and therefore fraud is ‘to misunderstand the phenomenon of transgender and its ontology. It is also to overlook the fact that the state recognises "gender dysphoria", provides state funded medical treatment for this "condition" as well as a mechanism for legal recognition of gender identity.’ [12]

The conclusion to draw from this is that barristers must be able to question transgender defendants in a way which gets to the root of the defendant’s gender identity and any deception that took place in the case. In order for a transgender defendant to be convicted due to their deception of a complainant, the jury must be convinced that the defendant’s deception vitiated the complainant’s consent by removing the complainant’s ability to decide whether or not to engage in sexual activity with a person of the gender of their choice.

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[1] R v McNally [2013] EWCA Crim 1051 [13]

[2] Ibid [27]

[3] Ibid [26]

[4] Ibid

[5] Ibid [51]

[6] Ibid [51]

[7] Ibid [52]

[8] Ibid [52]

[9] ‘Gender Dysphoria’ http://www.nhs.uk/conditions/gender-dysphoria/Pages/Introduction.aspx (last visited 04/01/17)

[10] European Convention of Human Rights article 8

[11] Sharpe ‘Criminalising sexual intimacy: transgender defendants and the legal construction of non-consent’ (2014) CLR

[12] Ibid p5

Making big decisions

Dear Readers,

As many of you will know, in order to take my position at Age UK, I decided to decline a very lucrative offer from a huge global consultancy firm. At the time, many of my colleagues, trusted friends and esteemed mentors, told me I must be mad. Now (maybe it is blind ignorance, stupidity or sheer willpower) but I still maintain that I made the right decision.

For any of you who are fortunate enough to have multiple job offers/ offers from companies that most people who deem 'career changing' I urge you to make your decision after you have answered the following questions.

1. Will I be able to pay the bills/ save for a mortgage/ pay rent etc if I take this job? This may sound obvious, however it is important to remember that being financially responsible and understanding the impact of your new role on your personal plans is key. For me, covering my rent and bills was all I needed to ensure I made the right decision. Things can get hard when you reject a financially lucrative role however for me, this came down to something closer to my soul. My desire to work to live rather than live to work.

2. Will I be comfortable in this role? Again, for me, this was crucial. Both roles had lovely offices, brilliant staff and fantastic job descriptions. I decided to go for the charity sector as I knew what I wanted to achieve and I felt that I was 'one of the team' right from the initial interview. The consultancy, we shall call X Ltd, had fantastic staff and were very welcoming but as I scratched the surface it was clear that they also had major communication issues, internal conflicts and brand image issues. For me, this was enough to show me that I needed to ignore the financial offer, the boost my career could gain from the role and follow my gut to go where I needed to be at this point in my career and life.

3. Is taking this role my choice? The final point that cemented my decision, was my realisation that had I taken the consultancy role, I was really taking it just to please everyone else. To me, X Ltd represented success, breaking the glass ceiling and proving any doubters wrong. That may seem ideal but really it also represented, giving in, making myself work to make others happy and even as a young professional, I was not ready to sell my soul.

For any of you out there who are lucky enough to be making these choices, I am not trying to convince you to avoid the big players in the global markets. I urge you to follow the words of my late Nan and 'never let anyone oppress you.'

As ever, if any of you have any questions, please feel free to get in touch.

K

Transgender and in prison

Transgender and in prison

This article covers 4 key areas:

1.    the segregation of female to male transgender defendants in male prisons and the article 8 ECHR issues that this gives rise to;

2.    the risk of violent and sexual offences being committed against male to female transgender defendants when they are sent to male prisons;

3.    the questions that criminal practitioners need to ask their transgender clients who are serving terms of imprisonment; and

4.    the remedies available to transgender inmates who are segregated or attacked whilst in prison.

Segregation of female to male transgender prisoners in male prisons

In this section, I will use the term ‘male to female transgender person’ to describe someone who was born physiologically male and wants to have gender reassignment surgery to become physiologically female.

The key case that looks at this issue is R (on the application of AB) v Secretary of State for Justice and another.[1]AB was a male to female transgender person who had attempted to rape a female stranger and committed manslaughter of her male partner. AB was physiologically male but wanted gender reassignment surgery. AB was legally recognised as female on the basis that she had been awarded a section 9 GRA, GRC, but in order to be allowed to have gender reassignment surgery she was required to live as a woman for 2 years in a female prison.[2] As part of her sentence, AB was imprisoned in a male prison. When the Secretary of State refused to move her to a female prison, she was instead kept as a segregated inmate in a male prison. This segregation included more onerous segregation conditions than she would have been under in a female prison because it included restrictions on what types of female clothes and make up she could wear when outside of her cell.[3]AB sought judicial review against the Secretary of State for Justice and the Governor of HMP Manchester to challenge the decision of the Secretary of State to imprison her in a male prison and not to transfer her to a female prison.[4]

The Queen’s Bench Division of the Administrative Court found that this breached AB’s article 8 ECHR right to a private life.[5] The Court found that AB’s rights were sufficiently precise and significant to engage article 8 of the Convention and that the interference with AB’s autonomy was a significant and personal one. The Court found that the interference went to the heart of AB’s identity as a transgender woman and that this was acknowledged by the Secretary of State in recognising that AB should be entitled to proceed with the process of gender reassignment. Therefore, AB’s article 8 rights had been breached and it was for the Secretary of State to justify why that interference was proportionate.[6] The Secretary of State argued that due to lack of resources, moving AB to a female prison would be too expensive and that in any event she would likely be in segregation in a female prison whilst she adapted to her new surroundings.[7]

The Court went on to find that the decision to keep AB segregated in a male prison was not in accordance with the law and that the Secretary of State had failed to consider certain relevant issues including the effect, on AB, of continued detention in a male prison. The Court found that the Secretary of State had failed to consider the cost of not transferring AB to a female prison and the possibility that the period of AB’s segregation in a female prison may not be very long.[8]The Court found that preventing AB from being transferred to a female prison was likely to frustrate her and lead to an increase in her risk profile.[9]

The risk of transgender defendants suffering physical and sexual violence in male prisons

The key point to note in cases where a male to female transgender defendant is being sent to a male prison is the importance of sending the defendant to a prison that matches their psychological but not necessarily their physiological gender. Edney[10] argues that male to female transgender defendants who are sent to male prisons on the basis that they are physiologically male, despite wanting gender reassignment surgery to become physiologically female, are at greater risk of sexual violence in prison. It is known that, in male prisons, threats of rape and sexual assault are used to intimidate and dominate other inmates. Youthful inmates, feminine inmates and physically weak or homosexual males are targeted disproportionately. Therefore, sending male to female transgender inmates to male prisons puts them at risk of sexual and physical violence. Additionally, segregating transgender inmates for their own protection puts them in more onerous conditions than the general prison population and therefore they are disproportionately punished. Edney summarises his research on this topic by explaining that the consequences for transgender people of a prison system that does not incorporate their concerns are significant and include high levels of sexual and physical violence and medical treatment that’s quality and suitability is arbitrarily dependent on the prison which they are being sent to.

Whilst Edney’s research focused on the American prison system, there is very little UK focused academic literature on this issue. What is evident is that violent and sexual attacks on transgender inmates in UK prisons are happening.[11] If you discover that your male to female transgender client is being attacked or segregated there are a number of steps you can take:

·         If your client has been remanded in custody or given a custodial sentence, you can make representations about what is happening to your client and why they should be transferred to another prison. These representations can be made orally or in writing to the governor of the prison.

·         Make representations at the sentencing hearing as to which prisons would be suitable for your client i.e. female prisons and prisons where hormone treatments would be available;

When working with transgender defendants who are being sent to prison, the questions that need to be asked are as follows:

What gender does the transgender defendant identify as?

This will affect the medical and psychological needs of the defendant. Also if they are physiologically male but identify as female, sending them to a male prison may lead to the article 8 ECHR issues outlined above.

Will they be segregated due to their transgender identity?

If the answer is yes, you need to consider whether this will breach their article 8 ECHR rights and also whether this will amount to disproportionate and discriminatory punishment. You should consider the possibility of segregation in the prison that your client may be moved to and the conditions that could be placed on them there as well as in their current prison.

What medical treatment will they need in prison in order to make their gender transition and what therapy will they need to supplement the aforementioned medical treatment?

The answer to this question will help the court send your client to a prison with the requisite healthcare facilities and therapy for their specific needs. These may include: hormone treatment, laser hair removal, counselling and gender reassignment surgery.

Remedies

To remedy the issues above you will need to consider the possibility of complaining to prison governors by making written or oral representations on your transgender client’s behalf. You could then consider making a judicial review application if needed. For more information on this issue you should consult the 2016 Ministry of Justice: ‘Review of the Care and management of Transgender Offenders’ report.[12]

---

[1] R (on the application of AB) v Secretary of State for Justice and another [2009] EWHC 2220 (Admin)

[2] Ibid [7]

[3] Ibid [5]

[4] Ibid [1]

[5] Supra 14

[6]  Supra 39 [53]

[7] Ibid [9] and [60]

[8] Ibid [73]

[9] Ibid [56]-[78]

[10] Edney, ‘To keep me safe from harm – transgender prisoners and the experience of imprisonment’ 9 Deakin L. Rev. 327 (2004]

[11] ‘Transgender prisoner at all male jail slashed across the face’ http://metro.co.uk/2016/10/24/transgender-prisoner-slashed-across-the-face-in-transphobic-attack-6212067/  (last visited 07/12/16)

‘Placing a transgender woman in a men’s prison is a cruel punishment’ http://www.independent.co.uk/voices/comment/paris-lee-placing-a-trans-woman-in-a-mens-prison-is-a-cruel-and-unusual-punishment-a6923831.html (last visited 07/12/16)

 ‘Transgender woman held in UK men's prison raped twice and tried to castrate self’ http://www.sundayworld.com/news/crime-world/transgender-woman-in-uk-mens-prison-feels-destroyed (last visited 07/12/16)

[12] ‘Review on the Care and Management of Transgender Offenders’   https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/566828/transgender-review-findings-web.PDF  (last visited 18/12/2016)

Working after the BPTC

Dear Readers,

Thank you so much for your ongoing support since my last post. As some of you know, I have been working at Age UK as a Policy & Research Officer/ Campaigns Support Officer and then as a freelance Tutor.

I think for aspiring Barristers, post BPTC working, should revolve around 3 questions:

1. Does this role make me a better Barrister?
2. Will this role make me stand out?
3. Does this role make me feel like I am contributing to a charity/ company/ cause?


For me, working at Age UK was an easy choice. The work was heavily law-based, I gained experience speaking to Parliamentarians, Government Officials, Lawyers and Service Users. It also helped me go back to the real reason I ever pursued law in the first place, to represent the underrepresented. Working with older people, carers, people living with dementia and the government, taught me to be humble, to remember why the law is so important and to always centre my advice, policy recommendations and research around the people who will be affected by the decisions I am trying to influence. On a personal level I learnt where my value lies: in my ability to understand the real life impact of complex legal issues. 

As some of you will know, my choice to join Age UK also involved my rejection of a very well known 'Big 4' consultancy. Here, now, after I have completed my contract at Age UK and accepted my next challenge, I still have no regrets. I am hoping to blog about that decision as well as my tutoring business very soon.

Thanks again for all of your messages of support and encouragement!


K

Update and advice

Dear readers,
Again I apologise for my delay in posting.  It has been an incredibly busy few months. I am pleased to announce I was classified as Very Competent for my BPTC and completed the BPTC with no resits. For those of you who asked, no criminal litigation did not screw me up I achieved 89% so anything is possible and you should never judge your own exam performance. In this post I plan to give advice on pupillage applications and interviews and BPTC exams.

Pupillage
I was very lucky this year and was offered 5 first round pupillage interviews unfortunately 2 fell when I was away in Australia and were not able to be rescheduled. 1 however did result in a second round interview and next week I will discover if I have achieved that illusive pupillage. Many of you facebooked and tweeted me asking for advice on firstly how to get offered a pupillage interview and secondly what to do in a first round interview. So I thought I would attempt a top 3 tips for each so here goes.

Pupillage applications really come down to planning. My top 3 tips for writing an application that will impress are:

1. Research- as much as it sounds obvious research the chambers, not just reading their webpage, actually look at the cases they have been involved in, how their pupillage is run and the kinds of people who gain pupillage and tenancy with them. In the application draw the readers attention to the fact that you are similar to their other pupils, be it because you got a first class degree, won a mooting competition or completed pro- bono work.


2. Plan- draft, draft and draft again. I did at least 10 drafts of my application form this year. I used about 2 hours per day for each day the gateway was open and ensured that each application was completely unique and tailored to each chambers. There are some things that I kept consistent for example why I am attracted to a career at the Bar however even those questions I tailored to the areas of law I was hoping to practice during my second six.


3. Express yourself- I had many people review my applications, some loved the honesty and controversial opinions and some hated them. My advice would be, be true to your personality. I am an opinionated headstrong kind of woman so I wasn't going to deny my opinions on some key legal issues e.g. Brexit, scrapping the HRA 1998 and assisted suicide. However if you go for a full- on expressive tone, be cautious. I worked very hard on appearing balanced yet opinionated. Whenever I gave an opinion I reasoned my opinion out fully and gave reasons for disagreeing with (not dismissing) opposing arguments.


First round interviews, in my view, come down to confidence and presence in the interview room. My 3 tips would be as follows.


1. Knowledge- ensure you know why you want to practice specific areas of law but do not limit yourself. You must have a good working knowledge of the chambers and their areas of practice and pupillage structure etc. However, it is vital that you also ensure that you accept that you cannot know everything, ask questions, concede when you need to and you can always ask for a question to be repeated.

2. Presence- when attending my first round interviews I felt as though the key factor that enabled me to be invited back for a second round was my presence and rapport with the panel. I think that this cannot be underestimated. There is no point pretending you know an area of law if you don't or pretending your father is a Lord if he is not. Although, I am by no means an authority on this, it seemed to me as if what worked was an ability to connect with the panel members, not necessarily through being like them or enjoying the same areas of law or even sharing opinions but by capturing their attention and imagination.

BPTC
Recently, I have also been tweeted and emailed a lot about BPTC exams and the BPTC course in general. For the sake of brevity and utility here are my top 3 BPTC tips.

1. Be consistent- I honestly believe the key to achieving a VC or at least not having to spend the summer doing resists is an ability to work consistently throughout the BPTC course. Do not assume that this is just a uni course and that you can cram in the Spring and make it to the Bar. Firstly their are 12 exams which start (at BPP at least) in December and end in June so you really need to keep the effort levels up. Secondly, if you plan a 40 hr week including your contact time you become used to treating the BPTC as a job and not just as a uni qualification. This makes it easier during the centralised BSB exams in March and April because you will already be used to working long hours and will have had time before to cover a lot of the content as you go along through the course.

2. Consolidate- I was told this 100s of times during the course and as much as it bores you it is certainly sound advice. Every week you must write up your notes and do practice questions, especially for the BSB exams, at BPP last year 70% failed the ethics exam and almost as many failed Civil Litigation. I do not know what caused this but from seeing how my cohort performed I would guess that a lot of the failures came down to failure to understand and learn the content of the BSB exams as it was taught. I will not lie, I did not manage to consolidate every week but I did manage to ensure that by the time the BSB exams were 6 weeks away I had consolidated every Civil, Criminal and Ethics SGS we had completed. This worked out at roughly 2 hours revision per SGS. When it came to exams this was invaluable because most of my notes were already written up into useful revision cards, posters and even small games. This not only saved time but also enabled me to test myself quickly and focus on the topics that I was struggling with.

3. Pride- The last thing to mention is to remember where you are and what you have achieved. This is a tricky one. I believe the key is to balance the feelings of believe in yourself and pride about what you have achieved to get to the point that you are taking exams that enable you to be called to the Bar of England and Wales but not allow this pride to enable you to become arrogant or complacent. When the exams are coming thick and fast and the pressure mounts, take time out, and remember that no matter how impossible it seems everyone is in your position (whether they admit it or not) and you have got this far so you can and you will achieve what you work for,



Thank you all for being so patient when waiting for my next blog post.

Have a wonderful Summer.


KT

5 things working with prisoners taught me

Dear Readers,

Sorry for the intermittent posting,  as the law students among you will know this is a very busy time of year on the BPTC. Revising for BSB exams, non-gateway pupillage applications and trying to fit in all my pro-bono commitments.

As some of you may know since September 2015 I have been volunteering as a Vocalise debate mentor. This involves going into prisons across London and teaching prisoners how to debate and express themselves  in a non-violent, non- threatening manner. This has by far been the most rewarding voluntary placement of my life so far and so I thought I would share with you all the top 5 things I have learnt.

1. Debating is vital- as much as I love debating personally I did not realise how important it would be for prisoners. It was not just about debating current affairs or what you would do if you were the last human on Earth, it is about giving the voiceless a voice, giving people who have given up on the outside world and themselves freedom within the confines of the prison walls, to feel like they matter. The whole experience was about prisoners being heard and feeling 'normal' and part of the world again. This for me made this a unique and profound experience.

2. Prisoners are people too- as much as this sounds obvious, I did not expect the emotional reactions in prison to be as varied as they were. I am now acutely aware of the reality of prison life. Prisoners know how people in the outside world feel about them. Prisoners feel outcast, rejected and as if the people who live in society want to take their rights away. This saddened me deeply and has made me decide that I must do more to help the prison community in future.

3. Prison is a community- and no I don't mean just in the 'Orange is the new black' sense. Prisoners are aware that they have been segregated and may never be accepted by society again. This creates an intense bond within the prison community that in some cases overrides gang loyalties. I think there is a lot the outside community can learn from the way prisoners remain loyal to one another, form a great sense of camaraderie and remain aware of their position within the outside world.

4. People outside of prison take way too much for granted- seeing people incarcerated taught me to value the smallest things in life. I can walk outside when I want, I can visit family and friends whenever I like and, within the confines of the law, I have total freedom. This is something that I feel people on the outside do not fully appreciate. Yes, there are problems in the world, no you cannot do WHATEVER YOU WANT but you can, within wide restrictions, move where you want, see whomever you want and say how you feel. In prison this is different, not only are you physically prevented from escape by the prison walls but you are pigeonholed into thinking about your life in a certain way. In prison, you cannot see your family when you want, you cannot say whatever you want because you know there are always people monitoring you. There is very much a Benthamite feeling in prison, you always feel as if you are being watched even though you know it is impossible for prison guards to see where you are 24 hours a day.


5. Law students are blessed- I had no concept of how much prisoners would appreciate the outside contact. I was expecting to be the enemy, especially as an aspiring barristers. The truth is  I was not. These people were so humbled that law students had bothered to give up their time to speak to them and more importantly to listen. This truly staggered me. I have never felt more privileged or more of a disappointment. I learnt that I really matter and that despite my concerns about getting pupillage and being good enough to serve my future clients, I can make a difference. The experience taught me never to take my position for granted, never to complain about my workload and never be cynical about this world of almost total freedom that we are blessed to be allowed to live in.

Billion dollar baby

This week it came to light that the  UK government may have the power to force football's illustrious  Premier League to distribute more cash to the sport’s grassroots, albeit such a move could be in breach of world governing body Fifa’s policy of not allowing government interference in the beautiful game.

John Whittingdale, the minister for culture, sport and media, told a House of Commons committee on the 16th September that the Premier League must give more of its huge profits to lower league clubs and grassroots teams.
He said: “The Premier League is enjoying a complete bonanza now. There is a huge amount of money coming in but the proportion of that that reaches the lower divisions and the grassroots in particular is still very small. Should they be doing more? Without any question.”
When he was questioned as to whether the government could intervene, he said: “If the Premier League absolutely refuses to increase the amount of money that passes down through the system to the benefit of grassroots sport, then I think we would certainly look at what options we have available to us to ensure that is the outcome. I hope that can be avoided. It would be perfectly possible for the government to intervene to achieve that outcome, maybe through a levy.”
This seems to be a key example of transnationalism in modern day law. The idea that a seemingly independent body like FIFA could be both above and below the UK government in terms of financial rule making in football. In short the government does have the legal power to make FIFA distribute profits to grass roots teams but FIFA rules explicitly refer to the prevention of government intervention in football.

Given FIFA's tarnished reputation since the world cup bid fixing scandal earlier this year it will become immensely difficult for FIFA to hide from the fact that much of its multi-billion pound profit sheet is not being spent on developing the sport.

Back in May, the Premier League pledged to share at least £1 billion  of its huge UK TV rights deal with lower levels of the game, claiming that such a contribution is “unprecedented in world sport.”

The Premier League really suprised everyone when it sold live rights to Premier League fixtures to Sky and BT Sport for a whopping  £5.136 billion. Since then the Premier League has been under pressure to distribute its wealth down towards the grass roots tiers of English football. Under this new pledge over £1billion will go towards grassroots football, match day experiences and paying all staff a 'living wage'

Richard Scudamore, the executive chairman of the Premier League, said of the payment amounts to £50 million per member club: “The clubs have always stepped up to the plate when it comes to sharing their success. They appreciate that the development of the Premier League is contingent to a high degree on continued levels of passionate support and a vibrant football pyramid.
“These are unprecedented levels of redistribution in world sport, let alone football, which will deliver long-term progress for English football whether you are a fan, lower league club or involved in the grassroots.”

Details of the Premier League’s future financial contribution to the lower levels of English soccer have still to be finalised as the UK television deal is subject to an investigation by Ofcom which was prompted by a complaint by Virgin Media, about the selling of broadcasting rights. However, the Premier League can expect a further windfall from other domestic rights and international rights.
Business advisory firm Deloitte said recently that total broadcasting income in the next three-year cycle could be as high as £8.5 billion.

Overall, this is a very interesting development in the world of transnational law and the intricacies of the hierarchical relationship between European governments and FIFA are slowly being bought out of the shadows. It is hoped that stories like this will bring a new generation of legal, footballing and property right students into the big issues of the IP world and into the murky waters of transnational law.

For further information on the topics covered in this article please see the following sources:

Cotterell ‘Spectres of Transnationalism: Changing Terrains of Sociology of Law’ (2009) 36 Journal of Law and Society 481-500.

http://www.theguardian.com/media/2015/sep/18/premier-league-rights-battle-between-sky-and-bt-harming-uk-tv-industry

http://www.bbc.co.uk/sport/0/football/27732437

http://www.solicitorsjournal.com/news/commercial/company/music-and-football-industries-ramp-protection-ip-rights

http://www.mondaq.com/mexico/x/123054/Trademark/Sports+And+IP+The+Case+Of+The+Fifa+2010+World+Cup

Need a kidney? Try facebook!

 Recently it was reported that Facebook had failed to take down organ adverts whereby customers in need of an organ could buy organs online. Not only is buying and selling both cadaveric and living organs illegal in the UK[1] ,but it is also an offence to publish or advertise for sale of an organ punishable by 51 weeks in prison. In this article I am going to suggest that this should not be the case and that we should in fact be able to buy organs in a structured and monitored organ market. I propose that the purchase of cadaveric organs should be legalised but not the purchase of living donor organs. In the following  paragraphs I am going to explain: firstly what the law is on these matters and why it is illegal to pay for cadaveric organs, secondly I will explain why paying for cadaveric organs is a good idea and why some of the points against purchasing cadaveric organs are unjustified, thirdly I am going to explain why the law should be changed to allow payment for cadaveric organs but not living organs and finally I will outline by proposal for a new system whereby cadaveric organs can be paid for morally and efficiently. 

The law

The main statute in this area is s32 HTA 2004. Which states that it is illegal to give monetary reward in return for a living or cadaveric organ but that payment to the hospital in money or money’s worth is not the same as a reward if it is to cover the costs of the transplant and any expenses in connection with transporting, storing, removing or preserving the material are not deemed to be a reward and also that payment of the donor’s expenses and compensation for time off work is not a reward.

The reason this is the law[2] is that it is deemed that it prevents the exploitation of poor organ donors who are willing to sell organs and risk their health in order to make money, to prevent the commodification of the human body and to maintain a level of altruism within the organ donation system. In the next section I will outline why these justifications are erroneous and why it would be better if we could create an organ market whereby cadaveric organs are bought and sold in a structured and closely monitored way.

We should not be allowed to pay for cadaveric organs because it involves the commodification of the human body

This is the point often raised by anti-organ payment ethicists, it appears to be a strong argument against payment for cadaveric organs but it is not. English law frequently commodifies human body parts and emotions. For example tort law literally puts a price tag on different injuries and awards damages for broken or lost limbs and emotional trauma. 

Paying for cadaveric organs takes the altruism out of the organ donation system

Again, prima facie this seems like a logical and strong argument however, Harris[3] argues that payment does not negate altruism- more so with cadaveric donors as they would not benefit from the money. Harris explains brilliantly that doctors are all altruistic and provide care and attention for those in need however no one ever suggests that these roles are less altruistic because the people performing them are paid. This is a very strong argument for paying for cadaveric organs. I suggest that we should pay the relatives and the estates’ of the deceased organ donors to recognise the altruistic nature of their  donation and so appreciate of the massive emotional trauma that the families of the deceased must go through knowing that their deceased relative is having their organs removed for donation.

Payment for organs exploits the poor

In her very informative article Nancy Scheper- Hughes[4] argues that vulnerable, poor donors who have no real choice but to donate are exploited by systems across the world, such as in Iran, where organs can be paid for. I must point out here that I agree with this point however I would like to make two further points. Firstly the issue of exploitation could be solved with a regulated market which Erin and Harris[5] suggest could involve the NHS paying donors using money that would be for used for medical alternatives to transplantation such as dialysis and secondly, this is why I suggest that only cadaveric organs should be purchasable because then the donor is not making the choice to donate based on their current financial situation but instead as a good will gesture to help create financial stability for his/her family in the future. If one did want to argue that living organs should be allowed to be bought and sold also, one could even suggest a deontological argument whereby that because living donors have rights over their bodies they should be able to have the right to sell organs. The reason that I have chosen to argue only for the right to sell and buy cadaveric organs however is because I believe that the pressure of families on living donors is already too intense and that adding money into the equation will only increase pressure on living donors and may unduly influence donors decisions to donate organs whilst they are alive.  Also as Goyal[6] argues if poor living donors sell organs this will not actually help their financial situation because if they are too ill to work after, for example, their kidney is removed or even later in life due to the weaknesses associated with living with one kidney then they will lose earning that may amount to an equal value to or more than that of the organ.

Why cadaveric organs should be eligible for monetary purchase

There are 3 main reasons why cadaveric organs should be able to be purchased:

1.      It will help reduce the organ shortage and save lives.
2.     The altruism of cadaveric organ donation is actually increased with payment because the deceased donor will have altruistically donated an organ and also altruistically insured some money for their estate that will support their family in future after their death.
3.           Medical professionals and the public have a moral duty to save lives where possible and by encouraging as many people as possible to donate organs we can create a culture of giving and healing whereby our duty to save lives is satisfied.

My proposed model for paid cadaveric organ donation

My proposal contains 5 main principles which could be manipulated and altered depending on the legal system in which this law reform is taking place.  I have created this proposal to follow on from and expand on the model that Erin and Harris suggest[7] and for the sake of this article I have assumed that it is the English legal system that would be trying to create a paid cadaveric organ donation system.

1. The potential donor signs the donor register as normal but selects what the payment will go to (e.g. estate, funeral costs, gift in a will). It is made clear to the donor that the payment is conditional upon the organ/s being used for transplant in that both the organ is suitable for transplant and there is a done available to receive the organ.
2.  The NHS pays the money for the organ/s based on a commodification bill drawn up by experts whereby each organ is valued based on the type of organ and that state it is in. the money will only be paid if the organ is fit for transplantation and a donee is available to receive the organ.
3. The donor dies and his/her organs are taken after the body has undergone cold infusion and the organ/s has been deemed suitable for transplantation and a recipient is ready in theatre.
4. The organ/s is transplanted into a patient and the NHS pay the agreed amount for each organ donated to the desired cause of the donor eg funeral costs, gift in a will etc
5. The entire system is regulated by an Act of parliament and it is only legal for the NHS to pay for organs and all organ transplantations are done in certified hospitals and via the official process outlined above.

Further reading in this area that may be of interest

For a general audience

•            The Organ Donation Taskforce, The Potential Impact of an Opt out system for organ donation in the UK (2008), available at: http://webarchive.nationalarchives.gov.uk/20130107105354/http:/www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_090312
•      ‘Organ Donation Opt Out System given go ahead in Wales’, BBC news, 2 July 2013 http://www.bbc.co.uk/news/uk-wales-politics-2314323
•       Gary Becker and Julio Elias, Cash for Kidneys: the case for a market in organs, The Wall Street Journal, 18 January 2014, available at http://online.wsj.com/news/articles/SB10001424052702304149404579322560004817176?mod=WSJ_hpp_MIDDLENexttoWhatsNewsFifth
•       http://www.theconversation.com/action-to-stop-thriving-global-organ-trade-must-start-at-home-7333

For legal professionals and students:

•         M Brazier, ‘Retained Organs: Ethics and Humanity’ (2002) 22 Legal Studies 550.
•         Department of Health, An Investigation into Conditional Organ Donation (2000) http://webarchive.nationalarchives.gov.uk/20130107105354/http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4035465.pdf
•          V English and A Sommerville. ‘Presumed Consent for transplantation: a dead issue after Alder Hey?’ (2003) 29 Journal of Medical Ethics 147.
•        CA Erin and J Harris J. ‘A monopsonistic market—or how to buy and sell human organs, tissues and cells ethically’, in Robinson I, ed. Life and death under high technology medicine. Manchester: Manchester University Press in association with the Fulbright Commission, London, 1994:134–53 (for an earlier, fuller version of the JME argument).
•        J Herring and P.-L. Chau, ‘My body, your body, our bodies’ (2007) Medical Law Review 34.
•        MA Jacob, Matching Organs with Donors (University of Pennsylvania Press, 2012)
•        K Liddell and A Hall, ‘Beyond Bristol and Alder Hey: The Future Regulation of Human Tissue’ (2005) 13 Medical Law Review 170.
•       NC Manson, ‘Normative Consent is not Consent’, (2013) Cambridge Quarterly of Healthcare Ethics 33-44
•      J McHale, ‘Organ Transplantation, the Criminal Law, and the Health Tourist’ (2013) Cambridge Quarterly of Healthcare Ethics 64-76
•        S Pattinson, ’Directed donation and ownership of human organs’ (2011) 31(3) Legal Studies 392-410
•       D Price, ‘End-of-Life treatment of potential organ donors:  paradigm shifts in intensive and emergency care’ (2011) Medical Law Review 86
•       D Price, ‘The Human Tissue Act 2004’ (2005) 68 Modern Law Review 798.n
•              M Potts and D W Evans, ‘Does it matter that organ donors are not dead?  Ethical and policy implications’ (2005) Journal of Medical Ethics 406.
•         C Waldby and R Mitchell, Tissue Economies: Blood, Organs and Cell Lines in Late Capitalism ch 6 (Duke University Press, 2006)
•       Welsh Government, Proposals for Legislation on Organ and Tissue Donation (2011)
•       S Wilkinson, Bodies for Sale (Routledge, 2003) ch. 7

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[1] Human Tissue Act 2004 s 32
[2]  For more analysis of law  in this area see: A Cronin and J Douglas, ‘Directed and conditional deceased donor organ donations:  Laws and misconceptions’ (2010) 18 Medical Law Review 275-301 http://medlaw.oxfordjournals.org/
[3] J Harris, ‘Organ Procurement: dead interests, living needs’ (2003) Journal of Medical Ethics 130.
[4] N Scheper-Hughes, ‘The Ends of the Body – Commodity Fetishism and the Global Traffic in Organs’ (2002) 22(1) SAIS Review 61-80; available at: http://web.mit.edu/writing/2010/June/Scheper-Hughes_endsofthebody.pdf
[5] C Erin and J Harris, ‘An ethical market in organs’ (2003) 29 Journal of Medical Ethics 137-138; available at http://jme.bmj.com/content/29/3/137.full
[6] Goyal M, Mehta RL, Schneiderman LJ, Sehgal AR. Economic and health consequences of selling a kidney in India. JAMA. 2002;288:1589–93. [7] C Erin and J Harris, ‘An ethical market in organs’ (2003) 29 Journal of Medical Ethics 137-138; available at http://jme.bmj.com/content/29/3/137.full