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The Court of Strasbourg is a lighthouse, a lookout. Jean-Paul Costa[1] Introduction The Convention for the Protection of Human Rights and Fundamental Freedoms, known as the European Convention on Human Rights (ECHR), is the ‘essential reference point for the protection of human rights in Europe’.[2] Concluded by the Council of Europe on 4 November 1950, the ECHR defines rights and freedoms which the contracting parties ‘shall secure to everyone within their jurisdiction’ under Article 1 of the ECHR and sets up the mechanisms for controlling contracting parties’ compliance with the obligations to secure these rights and freedoms.[3] This paper will explore Article 6 of the ECHR, not in terms of its practical guidance, but from the point of view of its jurisprudence in achieving fair trial rights in the Member States. Given the remit of such analysis, this paper will not seek to explore all aspects of the jurisprudence of the Court given all the rights and guarantees incumbent within the said Article, but instead concentrate on specific rights to focus on whether or not the Court has been effective in those areas in achieving fair trial rights. Firstly, it will provide an outline study of the jurisprudence of the Court and the tools available to it in reaching its decisions and consider such issues as the Court’s teleological effectiveness, its autonomous approach, the exercise of balancing involving the principle of proportionality and the controversial doctrine of the margin of appreciation. Secondly, and in a closer examination of some of the rights granted under Article 6, the paper will further explore the concept of ‘overall fairness’, and its development within the jurisprudence of the Court and how it has been applied when considering the right to legal advice, the right to an interpreter and the right to examine witnesses so far as securing fair trial rights, and in doing so will also examine some dissenting judgements. Finally, it will assess the overall effectiveness of the Court’s approach and whether or not it has, in fact, achieved ‘fair trial rights’. Understanding the Jurisprudence of the Court As a treaty, the Convention must be interpreted according to the international law rules in the interpretation of treaties.[4] They are to be found in the Vienna Convention on the Law of Treaties 1969 (‘Vienna Convention’).[5] Article 31(1) of the Vienna Convention states that the basic rule is that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. In accordance with the Vienna Convention, considerable emphasis has been placed on a teleological interpretation[6] of the Convention, i.e. ‘one that seeks to realise its object and purpose’. This has been identified in general terms as ‘the protection of individual human rights’[7] and the maintenance and promotion of ‘the ideals and values of a democratic society’.[8] Both of these considerations are confirmed by the Convention Preamble, which also identifies ‘the achievement of greater unity between its Members’ as the aim of the Council of Europe.[9] In its Soering judgement, the Court connected this principle of effectiveness to the nature and objectives of the Convention and to its own work in interpreting its provisions: In interpreting the Convention, regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms [ effectiveness principle ]…Thus, the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective…In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society.[10] Thus, Gerards confirms,[11] with reference to the Belgian Linguistics case of 1968, where the Court emphasised that the ‘general aim set for themselves by the Contracting Parties through the medium of the European Convention on Human Rights, was to provide effective protection of fundamental human rights’[12] and the Airey case in 1979 where the Court rephrased the principle of effectiveness in a formula that it still uses today that ‘the convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’.[13] It was highlighted that the notion of effectiveness provides the Court with important guidance in interpreting the Convention and in assessing the reasonableness and acceptability of interferences with the Convention rights. According to Article 1 of the Convention, the primary responsibility for offering effective protection of the Convention rights lies with the national authorities, who must ‘secure the Convention rights to everyone within their jurisdiction’. This has been called the principle of ‘primarity’.[14] The Court’s task is mainly one of checking whether the national authorities have complied with the obligations they have undertaken under the Convention. This is referred to as the principle of ‘subsidiarity’.[15] While not previously mentioned in the Convention, it has long been established in the Court’s jurisprudence, and as of August 2021, together with the margin of appreciation doctrine, it is now included as a principle within the Convention’s Preamble, pursuant to Protocol 15.[16] The principle of subsidiarity provides a theoretical basis for deference by the Strasbourg Court when considering compliance by State parties with their Convention obligations.[17] It also underlies the Strasbourg Court’s view that, in line with the principle of subsidiarity, it is best for the facts of cases to be investigated and issues to be resolved in so far as possible at the domestic level. It is in the interests of the applicant, and the efficacy of the Convention system, that the domestic authorities, who are best placed to do so, act to put right any alleged breaches of the Convention’. [18] and that the Court is not a fourth instance court of appeal from national courts. In the words of the Court, ‘it is not its function to deal with errors of fact or law allegedly committed by a national court unless and insofar as they may have infringed rights and freedoms protected by the Convention’.[19] Therefore, a claim that an error involves a breach of the right to a fair hearing in Article 6 will not succeed, as Article 6 provides a procedural guarantee only; it does not guarantee that the outcome of the proceedings will be correct on the facts or in law.[20] An important consideration which lies at the heart of the Court’s interpretation of the Convention and which is key to realising its ‘object and purpose’ is the need to ensure the effective protection of the rights guaranteed.[21] In Artico v Italy, [22] the Court stated that ‘the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’. In that case, the Court found a breach of the right to legal aid in Article 6(3)(c) because the legal aid lawyer appointed by the state proved totally ineffective.[23] A potential stumbling block in a coherent jurisprudence lies within the Court’s approach to the principle of consistency in interpretation which is limited by the text of the Convention. In Stec and Others v UK the Court stated that the ‘Convention must be read as a whole and interpreted in such a way as to promote internal consistency and harmony between its various provisions’.[24] Harris ( et al. ) note that although the Court relies heavily upon the ‘object and purpose’ of the Convention, it has occasionally found its freedom to do so is limited by the clear meaning of the text.[25] For example, in Wemhoff v Germany [26] it was held that Article 5(3) does not apply to appeal proceedings because of the wording of Article 5(1)(a). Exceptionally, in Pretto and Others v Italy , the Court went against the clear working of the Convention in order to achieve a restrictive result by acknowledging ‘that members States have a long-standing tradition of recourse to other means, besides reading out aloud, for making public the decisions of all or some of their courts…for example deposit in a registry accessible to the public’. There it held: The Court, therefore, does not feel bound to adopt a literal interpretation. It considers that in each case, the form of publicity to be given to the ‘judgment’ under the domestic law of the respondent State must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6 § 1. [27] In essence, the unqualified requirement in Article 6(1) that judgements be ‘pronounced publicly’ does not apply to a Court of Cassation. The Court considered that it must have been the intention of the drafting states to respect the long-standing tradition of the Council of Europe, despite no clear evidence in the travaux préparatoires. [28] Harris ( et al. ) considers that the Court’s approach may have been influenced by the fact that the text of Article 6 was probably drafted with only trial proceedings in mind.[29] In another decision of the Court, it adopted the position that the text of the Convention may be amended by state practice. The Court in Soering v UK [30] at, paragraph 103 said as follows: The Convention is to be read as a whole, and Article 3 should therefore be construed in harmony with the provisions of Article 2. On this basis, Article 3 evidently cannot have been intended by the drafters of the Convention to include a general prohibition of the death penalty since that would nullify the clear wording of Article 2 § 1. It then considered the law in the United Kingdom with respect to capital punishment, and in finding that the death penalty cannot be imposed for murder (Murder (Abolition of the Death Penalty) Act 1965, section 1) the s ubsequent practice in national penal policy, in the form of a generalised abolition of capital punishment, could be taken as establishing the agreement of the Contracting States to abrogate the exception provided for under Article 2 § 1 and hence to remove a textual limit on the scope for evolutive interpretation of Article 3.[31] At the time of the Soering judgement, the Court highlighted that ‘de Facto the death penalty no longer exists in the time of peace in the Contracting States to the Convention’, and in those where it did, it was not carried out. It suggested that this virtual consensus in Western European legal systems that the death penalty is, under current circumstances, no longer consistent with regional standards of justice…is reflected in Protocol No. 6 to the Convention, which provides for the abolition of the death penalty in time of peace…has been ratified by thirteen Contracting States to the Convention.[32] The Court has emphasised that a European, autonomous definition for such notions and concepts that are also used in national constitutions and legislation should prevail.[33] The Court has expressly stated that the integrity of the objectives of the Convention would be endangered if the Court were to take the national level of protection, or the national definition of certain notions, as a point of departure for its own case law. In particular, as Gerards highlights, this would pose the risk that the States might try to evade the Court’s supervision by narrowly defining the terms and notions that determine the Convention’s applicability.[34] However, despite this, the Court in Engel [35] left the decision as to whether effective protection of the right to a fair trial would be at risk by moving parts of the criminal law to disciplinary law to the national authority. Similarly, in Vo, the Court deliberately decided to avoid having to make the decision of when ‘life’ can be held to begin by leaving it within the margin of appreciation doctrine,[36] justifying its position by stating that firstly…such protection has not been resolved within the majority of the Contracting States…and secondly, that there is no European consensus on the scientific and legal definition of the beginning of life’.[37] In principle, the Court’s methodology was the opposite of an autonomous approach adopted in Engel, namely that the autonomous concepts of the Convention enjoy a status of semantic independence: their meaning is not to be equated with the meaning that these very same concepts possess in domestic law.[38] A similar concern recently arose in the case of R v Brecani [39] in the United Kingdom (UK), concerning a 17-year-old defendant in a conspiracy to supply cocaine. The defendant relied on the two-limb statutory defence under the Modern Slavery Act (MSA) 2015, s.45(4).[40] The appeal concerned the status of a Victim of Trafficking as determined by ‘a competent authority’. In VCL and AN v UK the ECtHR stated that ‘Evidence concerning an accused’s status as a victim of trafficking is…a ‘fundamental aspect’ of the defence which he or she should be able to secure without restriction’.[41] By contrast, the ‘status’ which the ECtHR afforded appeared to mean that as determined by the competent authority. However, the Court of Appeal in Brecani, in providing a broad formulation of the ratio, stated that ‘caseworkers in the ‘competent authority’ are not experts in human trafficking or modern slavery and for that fundamental reason cannot give opinion evidence in a trial…’.[42] This decision has the potential to cause injustice and put the UK in breach of its international obligations, such as whether it was appropriate for the UK to prosecute a victim of trafficking following a determination by a single competent authority in line with the Council of Europe Convention and the Palermo Protocol to the UN Convention on Transnational Organised Crime rather than on domestic legislation alone.[43] As Mennim and Ward suggest, if the ECtHR reaffirms or clarifies its view in VCL, the Court of Appeal or the Supreme Court will need to (re-) consider the same point.[44] The Brecani case highlights the concern raised by Gerards’ earlier, that can result in narrowed interpretations to circumvent compliance with a Contracting Party’s Article 6 obligations. How Proportionality is employed Stein argues that balancing is central to the reasoning process of the ECtHR, yet it is considered by many to be in tension with the Court’s chief aim of protecting fundamental rights.[45] Balancing in the jurisprudence of the ECtHR is essentially synonymous with proportionality assessment, the adjudication method used by the Court in the vast majority of its cases, this is despite its absence from the text of the ECHR. The use of proportionality in assessing violations of Convention rights has become the norm in the Court’s adjudication process.[46] However, while this may be the case, Stein argues that far from the textbook structured proportionality review, which is generally a constructed test made up of three independent, yet interrelated sub-stages (suitability, necessity/least restrictive means and proportionality in the strict sense/balancing test), proportionality as adopted by the ECtHR, is a flexible, open-ended balancing test in which competing claims of individual rights and collective goals are weighed against each other on a case-by-case basis.[47] The principle is often employed under the second paragraphs of Articles 8-11, where a state may restrict the protected right to the extent that this is ‘necessary in a democratic society’. This formula has been interpreted as meaning that the restriction must be ‘proportionate to the legitimate aim pursued’.[48] Similarly, proportionality has been invoked when setting the limits to an implied restriction that has been read into a Convention guarantee[49] and, in some cases, in determining whether a positive obligation has been satisfied. It has also been employed in considering non-discrimination under Article 14[50] and derogation from the Convention under Article 15.[51] Stein further contends that the resort to an all-inclusive balancing test carries controversial side effects that impact the review stages preceding the proportionality assessment, namely the ‘definitional’ stage and the ‘legitimate aim’ stage.[52] In respect of the former stage, Stein cites Gerards and Senden,[53] who argue that the ECtHR often completely skips this stage or pays lip service to it by accepting that the case falls within a Convention right without providing an explanation. When the Court does address the definition of the right, it often merges this analysis with the assessment of the justification for its limitation, thus avoiding the need to draw the scope of the right independent of competing policy considerations.[54] The second notable side effect, Stein identifies,[55] concerns the ‘legitimate aim’ in which illegitimate policy aims are filtered out. At times, quoting Šušnjar, the legitimacy of the aim is assumed, explicitly or implicitly.[56] Further, Gerard notes that although mentioned in each case, the Court has rarely found an aim to be illegitimate and has refrained from developing sub-requirements to help to elucidate the requirements entailed in the different prescribed aims.[57] Sadurski holds that even in the rare instances in which the Court expresses mild doubts concerning the aim, it brackets or disregards these doubts and proceeds to assess the proportionality of the application of the challenged measure/law.[58] The result of this process is that the illegitimacy of the aim is integrated into the proportionality assessment and is not the outcome of independent scrutiny.[59] The failure to articulate unjustified aims elevates collective goals, regardless of their incompatibility with what we value as essential to a given right.[60] When deciding on the proportionality of a ‘general measure’ enacted by a legislature, the Court has taken into account the quality of the parliamentary review in the respondent state that requires the measure. In the Animal Defenders International v UK case, the dissenting judgements expressed unease at the Court’s approach, stating their concern that the ‘double standard within the context of a Convention whose minimum standards should be equally applicable through all the States parties to it…very difficult to understand’.[61] The dissenting judges expressed their concern that the ‘fact that a general measure was enacted in a fair and careful manner by Parliament does not alter the duty incumbent upon the court to apply the established standards that serve for the protection of fundamental human rights’. They went further and stated: It is immaterial for a fundamental human right, and for that reason for the Court, whether an interference with that right originates in legislation or in a judicial or administrative act or omission. Taken to its extreme, such an approach risks limiting the commitment of State authorities to secure to everyone within their jurisdiction the rights and freedoms guaranteed by the Convention. Where the determination of the public interest and its best pursuit are left solely and exclusively to the national legislator, this may have the effect of sweeping away the commitments of High Contracting Parties under Article 1 of the Convention read in conjunction with Article 19, and of re-asserting the absolute sovereignty of Parliament in the best pre-Convention traditions of Bagehot and Dicey. The doctrine of the margin of appreciation, which was developed to facilitate the proportionality analysis, should not be used for such purpose.[62] As evidenced above, a further doctrine, which plays a crucial role in the interpretation of the Convention, is the margin of appreciation. The essence of this doctrine is that a state is allowed a certain measure of discretion, subject to European supervision, when it takes legislative, administrative or judicial action bearing on a Convention right.[63] The doctrine was first explained by the Court in Handyside v UK .[64] As Harris (et al.) highlight, the doctrine is a controversial one.[65] When applied widely, for example, to tolerate questionable national practices or decisions, for example, Barfod v Denmark ,[66] it may be argued that the Court has abdicated its responsibilities.[67] However, underlying the doctrine is the understanding that the legislative, executive, and judicial organs of a state to the Convention basically operate in conformity with the rule of law and human rights and that their assessment and presentation of the national situation can be relied upon in cases that go to Strasbourg.[68] Given this premise, Harris (et al.) suggest that the doctrine can be justified and accords with the principle of subsidiarity, albeit not used in other human rights systems globally.[69] In the next part of the paper, I will consider how the court’s jurisprudence is employed within the ambit of Article 6, in particular, Article 6(1), Article (2) and Article 6(3)(c) and (d) of the Convention and reflect on whether or not the concept of ‘overall fairness’ has been applied before assessing the overall effectiveness of the Court’s approach and whether or not it has, in fact, achieved ‘fair trial rights’. Article 6 Jurisprudence Article 6[70] does not contain a limitation clause. It does however enshrine the right to a fair trial, a broad term which includes a cluster of correlated procedural rights, starting from the more abstract, such as the right to an independent and impartial tribunal (Article 6(1)[71] and the presumption of innocence (Article 6(2)[72] to something more concrete, such as the right to legal assistance and the right to examine witnesses (Articles 6(3)(c) and (d).[73] The Court has also read into Article 6(1) certain implied rights, such as the right to effective participation[74] and equality of arms[75] which Samrartzis states can be similarly pinned on a sliding scale of abstraction.[76] However, according to Hoyano, despite the idiosyncratic list, it failed to include the privilege against self-incrimination and pre-trial disclosure of evidence possessed by the prosecution, which the ECtHR had to read into Article 6 to give it instrumental content.[77] The text of Article 6 does not provide a method by which to determine whether the infringement of a right protected under Article 6 is justified. This ambiguity is amplified by the fact that Article 6 is not an absolute right.[78] Further and more intriguing is the fact that parties may derogate from it under Article 15. Article 6(1) provides a generalised right to a ‘fair and public hearing’; Article 6(2) guarantees the presumption of innocence of all accused of a criminal offence; and Article 6(3) particularises five ‘minimum rights’ (see Annex I for the full text of Article 6). A fair trial guarantee does not require providing the most favourable circumstances imaginable for the defence, according to Hoyano.[79] ‘Fairness’ within the Concept of a Fair Trial In the context of rights relating to a fair trial, Goss holds that the ECtHR has displayed a tendency to refer to the ‘standards of proportionality’ and ‘very essence’ practically interchangeably, as in Goth v France (2002) ,[80] so there is hardly any significant distinction between what constitutes a disproportionate infringement and what constitutes an impairment of the very essence of the right.[81] Goss’s condemnation goes further: This irrational flexibility means that the Court can approach an individual application in an unpredictable multitude of ways: the Court may be deferential or not; the relevant test may be said to be one part of Article 6 or several; the relevant basis for the implied rights may be said to be one thing or another; and the alleged violation may be assessed using any one of a number of incoherent approaches…If the Court wished to deploy different approaches in similar situations, or different approaches in different situations, the interests of predictability and consistency simply demand that it adequately explain itself.[82] Hoyano takes the view that Strasbourg’s conception of the purpose of the fair trial guarantee is restrictive in that it is only designed to secure justice from national courts in the overall procedure afforded by their legal system rather than justice in the result.[83] According to Samartzis,[84] overall fairness is the unifying standard by which the Court has come to determine the relation of the rights. For example, to access a lawyer and examine witnesses under Article 6(3)(c) and (d), respectively, and the general right to a fair trial under Article 6(1).[85] Overall fairness, Samartzis submits, is an open-ended concept that emerged early on in Strasbourg jurisprudence and initially was conceived as an additional guarantee to the minimum rights of Article 6(3) ECHR.[86] In recent years, overall fairness has evolved into a distinct stage of the test[87] by which the Court finds a violation of Article 6(3)(c) and (d). However, Samartzis concludes that its meaning remains elusive or, as Hoyano describes it’s: a ‘protean and multidimensional term’.[88] In the cases of Salduz v Turkey [89] and Ibrahim and Others v UK [90], the ambiguous meaning given to ‘overall fairness’ by the Court serves, according to Samartzis,[91] to undermine the rule of law and facilitate judgements that misconceive the nature of the right. The Salduz test was generally understood to expand the protection afforded under Article 6(3)(c): the accused was to have a near-absolute right to access a lawyer before the trial, subject to a robust ‘compelling reasons’ test. Incriminating statements given without the benefit of legal advice and assistance should not be used for a conviction. In Ibrahim and Others, the Court reiterated the Salduz rule, specifying that it involved two stages. Firstly, the right to access a lawyer at the pre-trial stage can be restricted if there are compelling reasons to that effect. This is a stringent test:[92] factors relevant to its satisfaction are (a) whether the restriction has a statutory basis, (b) the quality of the legal provisions, and (c) the exceptional character of the restriction. Secondly, the Court examines the impact of the restriction on the overall fairness of the proceedings. This stage, Samartzis maintains, does not presuppose the presence of competing reasons. Instead, the Court recognised that the restriction might, in exceptional circumstances, be permissible even in their absence.[93] Thus, it rendered overall fairness the overriding consideration in finding a violation of Article 6 ECHR, of which the ‘compelling reasons’ test is but an aspect. Similarly, the Court conceived Article 6(3)(c) as an aspect of the fair trial stipulated by Article 6(1) rather than as an independent procedural right.[94] Samartzis further examines ‘overall fairness’ in the case of Schatschashwili v Germany .[95] The case questioned the compatibility with Article 6(1) and Article 6(3)(d) ECHR concerning trial statements of absent witnesses whom neither the accused nor his counsel had the opportunity to examine in the preliminary proceedings. Like Ibrahim and Others, the Court adopted a similar approach and formulated its methodology as a three-stage test[96] in accordance with the principles developed in Al-Khawaja and Tahery v UK .[97] The first part of the test considered whether there was a good reason for the witnesses’ absence. The second part was to determine whether the statements were the sole or decisive evidence for the conviction of the accused, and in the final part, the Court reviewed the overall fairness of the proceedings. From the assessment, the presence of counterbalancing measures was considered crucial, with the ‘sole or decisive rule’ under the second limb being no longer absolute. While the Court made a finding of a violation of Article 6 in this particular case, it noted that the absence of good reasons for non-attendance alone did not itself render the trial unfair even if the untested evidence was neither sole nor decisive and was possibly even irrelevant for the outcome of the case as this would amount to the creation of a new indiscriminate rule.[98] Samartzis emphasises that once again, the Court reduces one of the stages into the overall fairness assessment instead of being replaced with a concrete rule.[99] In further consideration of the overall fairness in the assessment of proceedings the court in Murtazaliyeva v Russia [100] insisted that its preservation ensured that the three-pronged test that it introduced did not become excessively rigid or mechanical in its application.[101] The Court asserted that the significance of the testimony that is sought must be weighed against its ability to influence the outcome of the trial. Owen points out that the three-part test: (a) whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation; (b) whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial; and (c) whether the domestic courts’ decision not to examine a witness undermined the overall fairness of the proceedings, is problematic. He highlights that its introduction continues to place the burden upon the defendant to justify why the witness must be heard as opposed to the prosecution showing why the witness should not.[102] He further identifies that what is of particular relevance is that the requirement is now imposed upon defendants to be able to show that evidence that a witness would provide can reasonably be expected to strengthen the case for the defence. This concept, as noted by Judge Pinto de Albuquerque, who, in his dissenting opinion, commented that the three-pronged test is a prima facie liberal test that is applied in an illiberal manner.[103] Further, Judge Bošnjak, in his partly dissenting opinion, expressed concern about the fact that it is often ‘impossible’ to determine what effect the testimony of a witness will have upon a court before that testimony is heard.[104] In 2017, the Grand Chamber applied the two-stage test analysis under Ibrahim and Others in Simeonovi v Bulgaria and found no violation of Article 6(3)(c), although the applicant, in that case, was denied access to a lawyer without any compelling reason.[105] In a further decision of the Court in November 2018 in Beuze v Belgium [106] where the applicant was subject to a systematic and mandatory restriction on his right to access his lawyer at the investigation stage, the Court had to explain: whether a clarification [as to the two stage test of analysis made in Ibrahim ] is of general application or whether, as claimed by the applicant in the said case, the finding of a statutory restriction is in itself, sufficient to have been a breach of the requirements of Article 6(1) and Article 6(3)(c).[107] In the majority of the Court’s opinion,[108] the mere existence of a systematically applied general and mandatory restriction on the right to access to a lawyer does not in itself result in a violation of Article 6(3)(c). However, in the jo int concurring opinion of Judges Yudkivska, Vučinić, Turković and Hüseynov, they highlighted that the Salduz type of case, of which Beuze was one, and Ibrahim and Others case were two very different cases.[109] The Grand Chamber acknowledged this in the judgement in Beuze ,[110] yet it decided to view such ‘fundamentally different situations through the same lens without ever analysing those differences in any depth’. The concurring judges believed that these two situations, when it comes to guaranteeing minimum rights to the assistance of a lawyer during pre-trial proceedings, deserve to be treated differently and were treated differently before the present judgement.[111] The concurring judges took the view that the judgement in Beuze departed from the standards of a fair trial as determined in Salduz and Ibrahim and Others , taken together. They went further and took the view that the judgement distorted and changed the Salduz principle and devalued the right that the Court established previously.[112] They considered That moreover, the present judgment also weakens, if not overrules, the jurisprudence in which the Court has laid down several other conditions which the domestic authorities must respect in restricting the Article 6 safeguards, including the right of access to a lawyer: first, that no restriction should be such as to destroy or extinguish the very essence of the relevant Article 6 right; second, that the restrictions may, in general, be imposed if they pursue a legitimate aim; third, that the restriction should be reasonably proportionate to the aim sought to be achieved .[113] Celiksoy takes the view that the Beuze judgement presented a dilemma in terms of whether the Salduz test or the Ibrahim and Others test had to be followed by the ECtHR.[114] If it followed the former approach and found an automatic violation of Article 6(3)(c) due to the restriction on the right to access a lawyer in the absence of compelling reasons, it would have contradicted the Ibrahim and Others test, which always requires a two-stage analysis.[115] In adopting the latter test, it was at the cost of the principles in the Salduz case and therein ‘devaluing’ the jurisprudence of the court over a period of ten years.[116] The real problem, Celiksoy contends, arose from the majority’s methodology and reasoning by insisting that both tests under both cases were the same when in fact, as cited supra, the Court acknowledged that they were separate.[117] The majority had missed an opportunity to re-establish both the Salduz and Ibrahim and Others tests as two separate but complementary principles.[118] In Doyle v Ireland [119] the dissenting judgement of Judge Yudkivska highlighted that the decision in Beuze [120] was based on a misguided interpretation of the Court’s own jurisprudence. In Doyle, the Court, relying on Ibrahim and Others and Beuze [121] in applying the overall fairness assessment, concluded that its strict scrutiny revealed that the proceedings were fair as a whole and there was no violation under Articles 6(1) and Article 6(3)(c) of the ECHR. Remarkably, in his dissenting judgement Judge Yudkivska concluded that 'the overall fairness of the proceedings in the present case was irreparably compromised'.[122] These are, without doubt, strong words when compared to the majority decision. Celiksoy submits that in his assessment of the Beuze judgement the case sends an implied message to the states that there is no need to recognise the right of access to a lawyer as a rule since even the application of a systematic statutory restriction of a general and mandatory note will not in itself constitute a violation of Article 6(3)(c).[123] Samartzis surmises that the novelty of the overall fairness line of authority lies in that overall fairness may override the meaning of Article 6, not only to expand but, surprisingly also, to negate the minimum fair trial guarantees of Article 6(3).[124] He argues further that, on one account, the Court’s overall fairness jurisprudence focuses on the accuracy of the trial’s outcome, which is indicated by the fact that the result of the overall fairness assessment coincides with whether or not the Court is convinced that the applicant was in fact guilty.[125] With the exception of Schatschaschwili v Germany , every relativisation of the Court’s bright-line tests has come with a finding of no violation of Article 6 in cases where the guilt of the accused appears indisputable.[126] One has to question whether or not the high bar required of successfully challenging Article rights 6 in light of the Doyle judgement[127] is capable of being met given the propensity of the ECtHR to rely on (properly considered) reasoning of domestic courts in its decision-making process. Vogiatzis argues that every violation of the right to interpretation undermines the overall fairness of the proceedings[128] and gives effect to the requirement of the rule of law. In its first judgement on Article 6(3)(e), the Court found that paying for interpretation costs ‘may have repercussions for [the accused person’s] exercise of the right to a fair trial as safeguarded by Article 6.[129] But, as Vogiatzis highlights, it was in Kamasinski [130] where the link between interpretation rights and fairness was solidified: the ‘guarantees in paragraphs 2 and 3 of Article 6…represent constituent elements of the general concept of a fair trial embodied in paragraph 1’. Placing the guarantee in the context of a fair trial under Article 6(1) enabled the ECtHR to deduce the principle that the right to interpretation applied not only to oral statements at the trial hearing but also to ‘documentary material and pre-trial proceedings’.[131] In Amer ,[132] the Court reiterated that the interpretation right at the pre-trial stage ensures a fair trial , and a key consideration for the interpretation of this right is the defendant’s linguistic knowledge and the nature of the offence.[133] Despite this positive development of the link between the right to an interpreter and a fair trial, in Panasenko ,[134] the Court appeared to unduly focus on the conduct of the accused at trial as opposed to thoroughly scrutinising states for failing to meet their positive obligations. It relied on the fact that the applicant did not specify the extent of the problems with interpretation at the trial, which impaired his broader right to a fair trial.[135] While Vizgirda [136] may have accentuated states’ positive obligations, Panasenko [137] highlights the extent to which the Court will go to undermine the applicant’s rights. The Court, further, having drawn inspiration from EU law, has not gone as far, Vogiatzis suggests, as duplicating the provisions/standards prescribed by Directive 2010/64 EU.[138] Conclusions As highlighted above, in the Animal Defenders’ case, the dissenting judgement of the Court raises a fundamental issue concerning the Court’s approach generally within the context of the Convention, and that is that a minimum standard should be equally applicable to all the States’ parties. States which seek to interfere in those fundamental rights, whether legislated upon or judicially decided, as evidenced in the recent decision of R v Brecani , have the effect of States avoiding their obligations under Article 1 and giving solace to the pre-Convention pervasive view that Parliament is sovereign. The Doctrine of Appreciation, which is used frequently in connection with the principle of proportionality, has the effect of weakening the Court’s role and, therein, the rights afforded to individuals under the Convention. A reliance on States compliance with the rule of law and its obligations under the Convention borders on collective naivety if the Court does not wish to appear to be abrogating its responsibilities and instead should seek to impose consistency and compliance across the board. Goss’ evaluation of the indistinctive assessment adopted by the Court has its merits, while the language used by the Court in its jurisprudence of ‘overall fairness’, as summarised by Samartzis, equally does not provide sufficient clarity to its meaning, as evidenced in Ibrahim and Others and Beuze . Equally, the Court in Murtazaliyeva introduced a reversal of the burden onto the defendant on why a witness must be heard, a fact highlighted by Judge Bošnjak in his partly dissenting opinion. It is difficult at times to reconcile the reasoning of the Court, particularly in these cases wherein it sought to undermine its own jurisprudence by compromising the ‘overall fairness’ of proceedings, as Judge Yudkivska emphasised in Doyle . The impact of these decisions is enormous and has the effect of eroding or extinguishing basic fundamental rights as well as encouraging, at the very least, attempts by national governments or national courts to implement laws and/or interpret judgements that can undermine rights and freedoms guaranteed under the Convention, thereby upsetting the harmony first sought and advanced in Stec and Others v UK . Annex I Article 6: Right to a fair trial In the determination of his civil rights and obligation or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly, but the press and public may be excluded from all or part of the trial in the interests of moral, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interest of justice. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Everyone charged with a criminal offence has the following minimum rights: to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; to have adequate time and facilities for the preparation of his defence; to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; 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; to have the free assistance of an interpreter if he cannot understand or speak the language used in court.[139] Damian P Clancy Damian P Clancy (LL.B (Hons) Cardiff) is a non-practising solicitor in England and Wales and is currently undertaking his Masters Degree at the University of Limerick. Damian’s professional background is in family law where he qualified as an Arbitrator and one of the first to qualify in England as a Child Arbitrator. He is looking to continue his studies by undertaking a PhD. [1] Jean-Paul Costa, La Cour Européenne Des Droits De L’Homme: Des Juges Pour La Liberté (Dalloz 2013) 257. Costa is a former President of the ECtHR (2007-2011). Translation from Marie-Luce Paris, ‘The European Convention on Human Rights: Implementation Mechanisms and Compliance’ in Suzanne Egan (ed), International Human Rights: Perspectives from Ireland (Bloomsbury 2015) 91. [2] Recommendation Rec. (2004) 4 of the Committee of Ministers to Members States on the European Convention on Human Rights in university Education and Professional Training [2004] 114th Session. [3] Paris (n 1) 91. [4] See e.g. Golder v UK A 18 (1975); 1 EHRR 524 PC [29] and Johnston and Other v Ireland A 112 (1986); 9 EHRR 203 [51]. [5] David Harris, Michael O'Boyle, Ed Bates, and Carla Buckley (eds), Law of the European Convention on Human Rights (4th edn, OUP 2018) 6. [6] Nikos Vogiatizis, ‘Interpreting the Right to Interpretation under Article 6(3) € ECHR: A Cautious Evolution in the Jurisprudence of the European Court of Human Rights?’ (2021) 00 Human Rights Review 7. [7] Soering v UK A 161 (1989); 11 EHRR 439 [87]. [8] Kjeldsen, Busk Madsen, and Pedersen v Denmark A 23 (1976); 11 EHRR 439 [87]. [9] Harris et al (n 5) 7. [10] Soering v UK (n 7). [11] Janneke Gerards, General Principles of the European Convention on Human Rights (Cambridge University Press 2019) 4. [12] Belgian Linguistics Case (1968) 1474/62, I.B. 5. [13] Airey v Ireland , ECtHR 9 October 1979, 6289/73 [24]. [14] J. Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Martinus Nijhoff Publishers 2009). [15] Explanatory report: Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms (coe.int) [9]. For an explanation as to the term ‘subsidiary’, see Harris et al (n 5) 17-8. [16] European Convention on Human Rights - Official texts, Convention and Protocols (coe.int) – Entry in force since 01.08.2021—Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms (CETS No. 213) - ‘Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention’. [17] Harris et al (n 5) 17. [18] Varnava and Others v Turkey hudoc (2009) 164. [19] Garcia Ruiz v Spain 1999-I; 31 EHRR 589 [28], cited in Harris et al (n 5) 18. [20] Harris et al (n 5) 18. [21] ibid. [22] Artico v Italy A 37 (1980; 3 EHRR 1 [33]. Cf. Airey v Ireland A 32 (1979); 2 EHRR 305 [24]. [23] Harris et al (n 5) 18. [24] Stec and Others v UK ( 2006)-V: 43 EHRR 1027 [48] GC. Cf Klass and Others v Germany A 28 ( 1978); 2 EHRR 214 PC. [25] Harris et al (n 5) 19. [26] Wemhoff v Germany A 7 (1968) ; 1 EHRR 55. [27] Pretto and Others v Italy A 71 (1983) ; 6 EHRR 182 [26]. [28] Harris et al (n 5) 19. [29] Harris et al (n 5) 19. [30] Soering v UK (n 7). [31] While state practice had not reached this point by the time of the Soering case, in the Al-Saadoon and Mufdhi v UK (2010) 61498/08 case the Court later concluded that it had, so that the numbers of ratification of the Thriteenth Protocol prohibiting capital punishment and other state practice were ‘ stongly indicative that Article 2 has been amended so as to prohibit the death penalty in all circumstances’ [120]. [32] Soering v UK (n 7) 103. [33] H.C.K. Senden, Interpretation of Fundamental rights in a Multilevel Legal System . An Analysis of the European Court of Human Rights and the Court of Justice of the European Union (Intersentia 2011) 169, 298, cited in Gerards (n 11) 67. [34] G.I.E.M. S.R.L and Others v Italy (2018), ECtHR (GC) 1826/06, 216 cited in (n 11) 67-68. [35] Engel and Others v the Netherlands, ECHtHR 24 June 2010, 30141/04. [36] An explanation is provided at page 11. [37] Vo v France, ECtHR (GC) 8 July 2004, 53924/00, 82-84 cited in (n 11) 71-72. [38] George Letsas ‘The Truth in Autonomous Concepts: How to Interpret the ECHR’ (2004) 15 European Journal of International Law 2, 279, 282. [39] [2021] EWCA Crim 731. [40] R v. Brecani [2021] EWCA Crim 731 - MSA 2015 s.45(4)—(i) that the defendant was a child who had been trafficked from Albania and this his involvement in a conspiracy to supply cocaine was a direct consequence of his having been a victim of slavery or relevant exploitation; and (ii) that reasonable person in the same situation as he was and having his relevant characteristics would have acted as he did. [41] VCL and AN v UK , App. No’s 77587/12 and 74603/12, 161. [42] ibid 54. [43] Sean Mennim and Tony Ward, ‘Expert Evidence, Hearsay and Victims of Trafficking: R v Brecani [2021] EWCA Crim 731’ (2021) 85(6) The Journal of Criminal Law 471, 474. [44] ibid 475-476. [45] Shlomit Stein, ‘In Search of Red Lines in the Jurisprudence of the ECtHR on Fail Trial Rights’ (2017) 50 Isr. L. Rev. 177, 182. [46] ibid citing (n 31); Marc-Andre Eissen, ‘The Principle of Proportionality in the Case Law of the European Court of Human Rights’ in Ronald St J Macdonald, Herbert Petzold, and Franz Matscher (eds), The European System for the Protection of Human Rights (Martinus Nijhoff 1993) 125, 146. [47] (n 43) and (n 30). [48] Handyside v UK A 24 (1976); 1 EHRR 737 PC [49]. [49] Fayed v UK A 294-B (1994); 18 EHRR 393,71 (Article 6(1)). [50] Belgian Linguistics; case A 6 (1968); 1 EHRR 241 [284]. [51] Lawless v Ireland (Merits) A 3 (1961); 1 EHRR 15 & Ireland v UK A 25 (1978); 2 EHRR 25 PC. [52] VCL (n 43) 183. [53] ibid 184, citing Janneke Gerrard, and Hanneke Senden, ‘The Structure of Fundamental Rights and the European Court of Human Rights’ (2009) 7 International Journal of Constitutional Law 619, 632-634. [54] VCL (n 43) 184, citing ibid 639. [55] ibid . [56] Davor Šušnjar, Proportionality, Fundamental Rights, and Balance of Powers (Brill 2010) 90. [57] Janneke Gerards, ‘Judicial Deliberations in the European Court of Human Rights’ in Nick Huls, Naruice Adams and Jacco Bomhoff (eds), The Legitimacy of highest Courts’ Rulings: Judicial Deliberations and Beyond (TMC Asser Press 2009) 407, 417, 62. [58] VCL (n 43) 184, citing Wojciech Sadurski, ‘Is There Public Reason in Strasbourg?’, research paper, Sydney Law School, 6 May 2015, 15/46 3-5. [59] ibid 10. [60] ibid 185, citing Stavros Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’ (2009) 7 International Journal of Constitutional Law 468, 488. [61] Animal Defenders International v UK Hudoc (2013) [1]—Joint Dissenting Opinion of Judges Ziemele, Sajó, Kalaydjieva, Vučinić and De Gaetano. [62] ibid 10. [63] Harris et al (n 5) 14 and (n 15) as to the amendments to the Preamble under Protocol 15. [64] Stein (n 46) 48-49. [65] Harris et al (n 5) 16. [66] Barford v Denmark A 149 (1989) 13 EHRR 493 [28-36]. [67] Harris et al (n 5) 16-7. [68] Harris et al (n 5) 17. [69] ibid and (n 122). [70] See Annex I for the full transcript of Article 6. [71] Article 6(1) - In the determination of his civil rights and obligation or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of moral, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interest of justice. [72] Article 6(2) - Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. [73] Article 6(3) - Everyone charged with a criminal offence has the following minimum rights: (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) 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. [74] Stafford v UK Application No 16757/90, Merits and Just Satisfaction, 23 February 1994. [75] Neumeister v Austria Application No 1936/63, Merits, 27 June 1968. [76] Andreas Samartzis, ‘Weighing Overall Fairness: A Critique of Balancing under the Criminal Limb of Article 6 of the European convention on Human Rights’ (2021) 21 Human Rights Law Review (2012) 2, 410. [77] Laura Hoyano, ‘What is balanced on the scales of justice? In search of the essence of the right to a fair trial;’ (2014) Criminal Law Review 1, 8. [78] Samartzis (n 76) 410. [79] Hoyano (n 77) 6. [80] Goth v France (2002) App No. 56316/99—See Mennim (n 43) 186 and (n 63)—where the court ruled that the requirement of surrendering to custody as a requirement of admissibility of appeal deprived the petitioner of liberty, and ‘undermined the very essence of the right to appeal by placing a disproportionate burden on the appellant that upset the fair balance that had to be maintained between the need to enforce judicial decisions and the need to ensure access to the Court of Cassation and that the defence was able to exercise its rights’. [81] Mennim (n 43) 186, citing Ryan Goss, Criminal Fair Trial Rights (Hart, 2014) 198-201. [82] Ryan Goss, Criminal Fair Trial Rights (Hart 2014) 206-207, cited in ‘Criminal fair Trial Rights: Article 6 of the European Convention on Human Rights’ Crim. L R., 2015, 3, 243-246, 243. [83] Hoyano (n 77) 8. [84] Samartzis (n 76) 410. [85] For example, Atlan v United Kingdom (2002 ) 34 EHRR 33, 39. [86] Samartzis (n 76) 413, citing Nielsen v Denmark where the European Commission of Human Rights held that, irrespective of whether there has been a violation of the minimum rights of Article 6(3), ‘the question whether the trial conforms to the standard laid down by paragraph 1 much be decided on the basis of the consideration of the trial as a whole.— Nielsen -v Denmark Application No 343/57, Commission (Plenary) Report, 15 March 1960 [52]. [87] As to the second stage of the Salduz v Turkey case (n 87) following an analysis in the first stage of where access to a lawyer can be restricted for compelling reasons. This second stage does not presuppose the presence of compelling reasons, instead the Court recognised that the restriction may, in exceptional circumstances, be permissible even in their absence. [88] ibid 413 citing Hoyano (n 58) 4. [89] Salduz v Turkey [GC] Application No. 36391/02, Merits and Just Satisfaction, 27 November 2008. [90] Ibrahim and Others v UK [GC] Application Nos 50, 541/08, 50, 571/08, 50, 573/08 and 40, 351/09, Merits and Just Satisfaction, 13 September 2016. [91] Samartzis (n 76) 412. [92] ibid 414. [93] Samartzis (n 76) 415, citing from the Ibrahim judgement (n 70) 265. [94] ibid 415. [95] Schatschashwili v Germany [GC] Application No. 9154/08, Merits and Just Satisfaction, 15 December 2015 cited by Samartzis (n 76) 415-416. [96] ibid 107. [97] Al-Khawaja and Tahery v UK [GC] Application No.’s 26766/05 and 22228/06. [98] Schatschashwili v Germany (n 95) 111-113. [99] Samartzis (n 76) 416. [100] Murtazaliyeva v Russia [2018] ECHR 1047. [101] Samartzis (n 76) 416-417. [102] Jordan Owen, ‘Questioning of Witnesses’ (2019) E.H.R.L.R. 2019, 2, 217-221, 220. [103] ibid 221 citing Judge Pinto de Albuquerque at para 18 of his dissenting judgment in Murtazaliyeva v Russia (n 98) [104] Murtazaliyeva v Russia (n 100) 220-221. [105] Simeonovi v Bulgaria [2017] ECHR 438. [106] Beuze v Belgium [2018] ECHR 925. [107] Ergul Celiksoy, ‘Overruling ‘ the Salduz Doctrine ’ in Beuze v Belgium : The ECtHR’s further retreat from the Salduz principles on the right to access to lawyer’ [2019] 10 New Journal of European Criminal Law 2019 4, 342-62, 343, citing Beuze ibid 116. [108] See judgement of the majority in Beuze v Belgium (n 106) in its findings at the conclusion of the judgements (after para. 200). [109] See dissenting judgement [2] under ‘Introduction’ heading. [110] Beuze v Belgium (n 106) 116; cf. [2] of Concurring Opinion. [111] ibid [2] of Concurring Opinion. [112] ibid 19. [113] ibid [20] of the Concurring Opinion. [114] Celiksoy (n 107) 352. [115] ibid. [116] ibid. [117] Beuze v Belgium (n 106). [118] Celiksoy (n 114). [119] Doyle v Ireland [2019] ECHR 377. [120] ibid under heading ‘B. Beuze’s unfortunate legacy’. [121] ibid under heading ‘C Overall fairness in the present case—1. The applicant’s severely restricted communication with his solicitor’. [122] ibid D—Conclusion of the dissenting judgement of Judge Yudkivska. [123] Samartzis (n 84) 359. [124] Harris et al (n 5) 471. [125] Samartzis cites Al-Khawaja (n 97) 155-158 ; Ibrahim and Others (n 90) 277-279; Murtazaliyeva (n 100) 169-176 and Simeonovi (n 105) 132-145. [126] Samartiz (n 76) 471. [127] Judge Yudkivska (n 122). [128] Nikos Vogiatizis, ‘Interpreting the Right to Interpretation under Article 6(3)(e) ECHR: A Cautious Evolution in the Jurisprudence of the European Court of Human Rights?’ (2021) Human Rights Law Review 2021, 00, 1-25, 12. [129] ibid 14 citing Luedicke, Belkacem and Koc v Germany , Applications 6210/73, 6877/75 and 7132/75, 28 November 1978, 42. [130] Kamasinski v Austria , Application 9783/82, 19 December 1989 [62]. [131] ibid 76; Judge Yudkivska (n 127) 14-15. [132] Amer v Turkey , Application 25,720/02, 13 January 2009, 77-78. [133] Soering v UK (n 7) 15. [134] Panasenko v Portugal , Application 10,418/03, 22 July 2008. [135] Soering v UK (n 7)—the court in that case found that the claim was ‘manifestly ill-founded’ and was rejected; ibid 60-64. [136] Vizgirda v Slovenia (2018) 59868/08, 3 of the dissenting opinion of judges Kucsko-Stadlmayer and Bošnjak. [137] Soering v UK (n 7) 60-64. [138] Judge Yudkivska (n 127) 22. [139] The text of the ECHR is available on the website of the Treaty Office of the Council of Europe at < http://conventions.coe.int/ > under ‘Full List of Treaties of the Council of Europe‘ (ETS no. 005) accessed 7 December 2021.

As a result of systematic attacks by the Russian armed forces on Ukrainian cities, civilians are killed and injured, and civilian objects are destroyed. Amidst these attacks, museums and architectural monuments protect valuable objects. The destruction and expropriation of Ukraine’s cultural property by the Russian aggressor is striking in its scope. These actions have reached such an extent that we can consider it the destruction of Ukraine’s cultural heritage. At the opening of the Ukrainian Institute’s ‘Postcards from Ukraine’ project, the director of the USAID Mission in Ukraine, James Hope, noted that ‘Russia’s malicious, targeted destruction of Ukrainian Cultural Monuments is a huge loss for Ukraine, Europe, and the whole world. Trying to erase the culture and history of Ukraine, the Kremlin is trying to erase the very concept of the Ukrainian nation’.[1]   Architectural monuments and objects of monumental art, monuments, religious sites, and places of memory are subject to targeted attacks. Among other things, a significant number of crimes committed during Russia’s aggression against Ukraine are directed against museums and museum collections, which are a concentrated embodiment of Ukraine’s cultural heritage. At the same time, museums of both state, municipal and private ownership suffer losses. The intangible cultural heritage of Ukraine also suffers significant losses. This heritage has the least protection in International Humanitarian Law, but it is the reflection and carrier of the national cultural traditions of any nation. The project ‘War Crimes in Ukraine: Museums and Intangible Cultural Heritage in the Crosshairs’, implemented by the NGO Fundamental Research Support Fund, documented the damage, destruction, and looting of a significant number of museums in Ukraine (100), resulting in a report of the same name.[2]   Armed conflicts have historically had a negative impact on cultural heritage, with cultural property being particularly vulnerable. In 1954, the Convention for the Protection of Cultural Property in the Event of Armed Conflict ( The 1954 Hague Convention ) was adopted by UNESCO to preserve cultural heritage globally. The 1954 Hague Convention aims to protect cultural property, including monuments of architecture, art or history, archaeological sites, works of art, manuscripts, books, scientific collections, and more. Along with the 1954 Hague Convention, the First Protocol, specific to protecting movable cultural property in the event of occupation, was also adopted in 1954. Ukraine and Russia are parties to the 1954 Hague Convention and the First Protocol.   As for the 1999 Second Protocol, intended to supplement the provisions of the original 1954 Hague Convention and reinforce its implementation, Ukraine acceded to it in 2020, while Russia is not a party to it. However, Ukraine can still use the 1954 and 1999 Protocol provisions to enhance cultural property protection. To use this mechanism, the cultural property must meet certain conditions, including exceptional cultural and historical value, be protected by appropriate legal and administrative measures, and not be used for military purposes or to conceal military objectives.

As a field of scholarship and practice, Transitional Justice (TJ) has become the dominant framework through which to consider ‘justice’ in periods of political transition ever since the end of the Cold War.[1] Understood here as ‘the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation’,[2] TJ systems are founded on the premise that attaining justice for past atrocities is a fundamental pillar to building lasting peace in societies emerging from conflict.[3] This logic, largely disseminated by liberal peace proponents, is relatively persuasive. However, the literature on TJ and peacebuilding too often takes the meaning of ‘justice’ for granted, focusing instead on other areas of contestation, such as the ‘amnesty versus punishment’ or the ‘peace versus justice’ debates, which presume a standardised and narrow conceptualisation of justice as individual accountability for Human Rights (HR) violations.[4] For this, it is useful to situate the global surge of TJ systems within the broader process of judicialization in international relations, a trend Subotic terms ‘global legalism’.[5] This unquestioning adherence to law not only fails to respond adequately to the complex realities of conflict and peace, but also confines the potential of ‘justice’ to alter oppressive power structures to the boundaries of a technocratic, legalistic tradition. A Galtungian distinction between positive and negative peace is thus an appropriate theoretical frame to explore the limitations of the law in delivering far-reaching and holistic transformation to conflict-affected societies. Accordingly, it is argued that in practice, justice often constrains the production of positive peace frameworks by reinforcing the application of seemingly apolitical legal principles to guide and inform political transitions, which may reproduce patterns of direct and indirect violence. An assessment of the role of law in shaping notions of justice in South Africa’s Truth and Reconciliation Commission (TRC) and the International Criminal Tribunal for the former Yugoslavia (ICTY) serves to illustrate this argument. The paper proceeds as follows. First, it locates ‘justice’ within the liberal peace paradigm, elucidates the distinction between positive and negative peace, and offers a brief background of the ICTY and the TRC, justifying the selection of these cases. It then focuses on three basic legal principles underpinning TJ processes and mechanisms in South Africa and the former Yugoslavia: i) the notion of individual accountability; ii) the emphasis on HR abuses; and iii) a statist ontology, highlighting the ways in which each of these norms limit the potential contribution of ‘justice’ towards fostering a meaningful peace in both contexts. The conclusion reiterates the critique against depoliticised notions of law and justice. Justice, Law, and the Liberal Peace The end of the Cold War saw the consolidation of the liberal vision as the dominant set of principles informing the theory and practice of transnational peacebuilding.[6] Chief among these principles lies the conviction that lasting peace is not possible without justice, a premise that has been the cornerstone for the creation of TJ systems globally.[7] Indeed, proponents of the liberal peace often suggest that the liberal conception of ‘justice’ as accountability is the surest route to peace because such a notion is rooted on the apolitical, ahistorical and universal framework of the law, which makes it uncontroversial.[8] This legal positivism responds to the Western ideal that law is an ‘objective, blind and consequently fair arbitrator’,[9] and to the expectation ‘that subjecting political behaviour to the apolitical judgement of law will exert a civilising effect’.[10]

Three Stories of Art and War II коли гуркочуть гармати- музи замовкають The Russian invasion catapulted the Ukrainian art world into crisis, and desperate measures were undertaken to secure staff, collections, and artists. Dreams are deferred but stubborn resilience manifests as a desire to not only protect cultural heritage, but also somehow provide opportunities for continued creativity. Three institutions from all regions of Ukraine—Central, East, and West—reflect on their current challenges, on how they are coping, and what might be in store for the future. When cannons roar, the muses will not fall silent. Mykhailo Glubokyi, an IT specialist from Kharkiv, Ukraine, is the Communications Director for Izolyatsia/iZone and a board member of Trans Europe Halles, a Europe-based network of cultural centres at the forefront of repurposing industrial buildings for arts, culture, and activism. Izolyatsia is a nongovernmental and non-profit platform for contemporary art. It was founded in 2010 in a former insulation materials factory in Donetsk and on 9 June 2014 the territory was seized by Russian Federation militants and is now used as a prison camp and torture chamber. Izolyatsia subsequently relocated to Kyiv to a shipyard warehouse where it continued its programme as both a centre for international creative industries and Ukrainian cultural activities. On 24 March 2022, Izolyatsia in Kyiv was forced to close due to the Russian invasion of Ukraine. This interview was conducted on 14 April 2022. Figs 1 & 2. Pre-2014, Izolyatsia Donetsk, Make-Up…Peace and Homo Bulla © Mykhailo Glubokyi. Constance Uzwyshyn, for CJLPA : Izolyatsia was based in Donetsk. What is going on with the Donetsk Izolyatsia building now? Mykhailo Glubokyi : It is a prison.[1] Unfortunately, it remains held by Russians. Stanislav Aseyev,[2] who was released, has started looking furiously for people who imprisoned him. He managed to identify a couple of Russians who worked at the prison. As soon as they became public, they disappeared. It is not possible to understand who is behind this now and what happened to these people. Unfortunately, nothing has changed with this place. Now we have received reports that in newly occupied places, like Kherson, they are doing something similar there—building illegal prisons, holding people, torturing people, persecuting people. Unfortunately, this model is considered successful and is duplicated.

Each year, The Economist publishes a Democracy Index. The 2022 edition listed 167 countries ranked on metrics of five dimensions: electoral process and pluralism, the functioning of government, political participation, democratic political culture, and civil liberties. The US ranked 26th in the world. At the top of the list were Norway, New Zealand, Finland, and Sweden. At the bottom were North Korea, Myanmar, and Afghanistan. No real surprises there, but Taiwan (8), Uruguay (13), South Korea (16), UK (18), and Costa Rica (21) all outranked the US. The US had slipped over the past six years from a full democracy to a flawed democracy.[1] All democracies have flaws. They are human creations after all. But the US has more flaws than many of its democratic peers. The insurrection of 6 January 2021 revealed a disturbing refusal by some to accept the results of democratic elections. On that day, protestors gathered at the Capitol to overturn the result of the 2020 Presidential election. The insurrectionists sought to stop the ceremonial congressional confirmation of Joe Biden as the 46th President of the US. In this essay, I want to explore some of the reasons behind this democratic slippage. I focus on electoral issues, rather than the deep-seated socio-economic context of the insurrection. I will draw on some of my previous work.[2] It is important to begin with the realization that the US was founded as a republic, not as a democracy. The founders were distrustful of the raw political energy of the people. In 1787, James Madison, the 4th US President, described democracies as spectacles of turbulence and contention; incompatible with personal security or the rights of property.[3] Thus, the government in the US was structured to insulate political elites from popular opinion. The Congress, the executive, and the judicial–a nine-member oligarchy of lifetime political appointees whose guiding ideology always seems half a century behind the general public–limit and blunt the expression of the popular will. The hallmarks of a healthy democracy are that each vote should be counted and each one should count equally. This is not the case in the USA, where the difference between popular will and political representation is growing. Let’s look at four sources for the growing deficits of US democracy. Follow The Money Money plays a huge role in US politics. Members of Congress need to solicit vast amounts of money to wage their electoral campaigns. Money comes from a variety of sources. There is the modest contribution of the ordinary citizen, that can sometimes make a difference in insurgent campaigns. There are also the legal contributions from well-founded groups. Lastly, there is the ‘ dark money’ of nonprofit organizations including unions and trade organizations, and political action campaigns (PACs) who do not have to disclose their donors.[4] Individuals can contribute to these organizations’ political campaigns while remaining anonymous. The Supreme Court, in a series of rulings including Buckley v, Valeo in 1976 and Citizens United v. FEC in 2010, made it easier for all types of money, including dark money to flood into the political system.[5]

Introduction There has been an epochal shift from the traditional industries established by the Industrial Revolution, including hand production methods in machines[1], to a post-Industrial Revolution economy based upon information technology, widely known as the Digital Age.[2] Lord Sales has referred to computational machines as ‘transformational due to their mechanical ability to complete tasks…faster than any human could’.[3] The twenty-first century has seen an enhancement in human innovation, and the world of law is being forced to change. Legal practice has become more technology-centric, allowing for law in theory and in practice to keep abreast of society. This article explores how technology, specifically AI, has evolved through the digital age. Firstly, it will explore how the evolution of AI has warranted a cataclysmic shift in the law. Then, in chapter two, it will illustrate the challenges which AI has posed and which it has the potential to create for the law. In so doing, it will identify how AI could pose a substantial threat to the law. In chapter three, however, solutions to the issues that AI poses will be addressed and analysed. Undoubtedly, AI can be a substantial threat to the law. Nonetheless, this article aims to illustrate that human creativity must not be underestimated. If used correctly, AI could change how law functions in the twenty-first century for the better. This article explores various theoretical aspects of how AI and the law interact with society, focusing in particular on Lessig’s Law of the Horse[4] and the new revelation of the Law of the Zebra.[5] It further treats the concept of technological exceptionalism and how this theory has allowed for the progressive evolution of AI. McGinnis and Pearce argue that machine intelligence and AI will cause a ‘great disruption’ in the market for legal services.[6] This article will explore this concept of disruptive innovation, suggesting that the disruption McGinnis and Pearce allude to will be more significant in scale than initially anticipated. It will explore the ethical, moral, and social issues associated with AI, investigating how AI has the potential to pose a problem to the law. As an extension of the moral, social, and ethical issues presented, this article will offer an insight into AI’s autonomy as regards the law. Finally, the problems of foreseeability and transparency will be discussed in terms of the substantial issues AI poses to the law. The idea of the robot judge will be addressed, identifying how this could materialise. Its benefits and challenges will subsequently be critically assessed in terms of the threat to legal practice in the twenty-first century. Additionally, the practicalities of the robot judge will be assessed, suggesting that it is an unnecessary fear and a potential gift. As part of chapter two, the idea of AI systems being granted a more respected legal personality will be explored. The arguments presented will allude to the sophistication of current AI technology and issues surrounding liability. The importance of the concept of legal personality will be stressed, demonstrating that society must be cautious as to who is granted legal rights of personhood. Chapter three will present innovative solutions to the problems assessed in chapter two. This section will set out a detailed model that allows for the comprehension of the legal disruption caused by AI and its associated technologies.

Then from out the cave the mighty Polyphemus answered them: ‘My friends, it is Noman that is slaying me by guile and not by force’. And they made answer and addressed him with winged words: ‘If, then, no man does violence to thee in thy loneliness, sickness which comes from great Zeus thou mayest in no wise escape’. —Homer , The Odyssey, Book IX […] for when man was first placed in the Garden of Eden, he was put there ut operaretur eum, that he might cultivate it; which shows that man was not born to be idle […] let us cultivate our garden. —Voltaire, Candide Introduction The emergence of global digital surveillance and control heralds the advent of digital technologies as the nexus of social cohesion and political decision-making. The ominous image of representatives from Google, Apple, Facebook (Meta), and Amazon engaging in political discourse with representatives from the seven most economically advanced nations in the world at the G7 meeting in 2017 epitomises how this emergence has upset the balance of power. This new form of surveillance and control marks a paradigm shift within surveillance theory. Whereas Foucauldian panopticism had informed our understanding of the dynamic between surveillance and control, many recent publications are more likely to be informed by Deleuze’s concept of the society of control, which reconceives the dynamic as existing between access and control. We are, then, beckoned to shift the locus of our analyses from subjectification to access control as the primary power mechanism to be analysed. In this paper, I examine the contemporary discussion surrounding Foucauldian and Deleuzean methods of power analysis. While I will defend the Foucauldian focus on subjectification as a privileged power mechanism, I recognise that Foucault’s analysis of subjectification as such is untenable. This paper seeks to uncover how a post-Foucauldian conception of subjectification can contribute to the discourse on power in the emerging societal landscape of global digital surveillance and control. In order to arrive at a post-Foucauldian conception of subjectification, I first elucidate what exactly Foucault means by subject. Then, informed by Heidegger’s analysis of Dasein, I exposit how a subject arrives at their operating framework, ie, their framework of possible thought and action. Employing Deleuze’s concept of territory, I then arrive at a conception of how the operating framework of subjects can be produced and reproduced. This exploration ultimately culminates in ten theses regarding a post-Foucauldian concept of power and subjectification. Finally, I conclude that a post-Foucauldian conception of subjectification can restore the focus on subjectification within power analysis, thereby providing us with an explanatory model that can account for the voluntary display of intentional socially desirable behaviour by subjects en masse. 1. Foucault and Deleuze Before delving into the discussion surrounding Foucauldian and Deleuzean power analyses, I will first devote a few elucidatory remarks to the concept of power and the concealments that the English language entails in respect to it (§1.1). Afterwards, I articulate the difference in focus between Foucault’s and Deleuze’s analyses. In §1.2, I defend Foucault’s position, namely, the importance of a focus on subjectification in power analysis. In §1.3, I problematise Foucault’s account of subjectification and articulate the necessity of a post-Foucauldian conception of subjectification.

Artists have drawn ideas, thoughts, and concepts from the works of others for centuries. However, copyright infringement issues frequently arise in the contemporary world. The case discussed in this piece concerns contemporary artworks from the ‘Canal Zone’ series by Richard Prince. Most of the works had photographs by Patrick Cariou incorporated in them, which were previously published in Cariou’s Yes Rasta book. Following an analysis of appropriation art history, postmodern theories, contemporary art market, the contradictory nature of copyright law, and finally the US ‘fair use’ test and ‘transformative character’ requirement, the author is critical of copyright law not allowing for appropriation art. She is of the view that under certain circumstances, the use of preexisting art is justified. Appropriation art history In the history of art, it would be an impossible task to count all the times artists have ‘copied’, in the broad meaning of the word, one another. Appropriation art per se was recognised around the time Pablo Picasso and Georges Braque made their collages from 1912 onwards, and Marcel Duchamp’s exhibited his ‘Readymades’ in 1915.[1] It can be defined as intentional borrowing, copying, and alteration of existing images and objects.[2] Artists have been ‘appropriating’ each other’s works for centuries. One example is Raphael (fig. 1), whose work was recreated by Diego Velázquez (fig. 2), which in turn inspired Francis Bacon (fig. 3). Fig 1. Raphael, Portrait of Pope Julius II, 1511. Wikimedia Commons: National Gallery. . Fig 2. Diego Velázquez, Portrait of Pope Innocent X, 1650. Wikimedia Commons: Doria Pamphilj Gallery. .

‘I’m mad as hell and I’m not going to take this anymore!’ is a phrase that has been raptured up into the popular English lexicon, cited, quoted, parodied, remixed, and dissolved into an ironic confirmation of the satire that produced it. It was the most iconic line from Network (1976), a now-classic film that told the dark tale of a fictional American network news anchor, Howard Beale (played by posthumous Academy Award-winner Peter Finch), whose blooming madness was exploited by his bosses for ratings bonanza. But in becoming a meme detached from its context, it rather proved the film’s point: in the particle accelerator of mass media, even the most potent radicalism can be diffused into mere entertainment. The line’s endless citation,[1] repeated without irony,[2] obscures the fact that the line represented a grim low point in the movie. Shouting it into the camera, Beale commanded the American public to get out of their chairs and holler the memorable phrase out their windows, shouting to the heavens in pure outrage about ‘the depression, and the inflation, and the Russians, and the crime in the street’ (sound familiar?), leading to angry Americans shouting about their anger into the uncaring night. It was not meant to be admired, much less imitated. It was a warning. And a particularly prescient one, at that. The film has many admirers — such as Aaron Sorkin, whose own smugly liberal style is but a dim echo of Network screenwriter Paddy Chayefsky’s own preachy yet eloquently radical approach. Such fans suggested that the movie predicted the rise of reality TV; in 2000, Roger Ebert, in a reflection on the film, asked if even in his darkest nightmares Chayefsky could have foreseen how his film anticipated the World Wrestling Federation and Jerry Springer, which is almost quaint to consider now.[3] In truth, none of those things were what Network anticipated. The film was about something more abstract than a single TV show, or even a genre. It was about how mass media perverted popular will and commodified it. And nothing embodies the realisation of its warning quite like social media. Indeed, to look at a platform like Twitter is to see millions of people yelling endlessly about their rage into the endless night of the internet, a vastly more efficient and perpetually running version of people yelling out their apartment windows. What results is a medium that is, despite all evidence to the contrary, anathema to politics. *** The best satires are often the least effective as warnings; the very things that make them popular—memorable, engaging speeches like Howard Beale’s—can outshine the subtler points that make them incisive. While writing this article, I looked up the most popular YouTube clip of the ‘mad as hell’ speech.

Introduction The work of many 17th-18th century thinkers on politics and society continues to shape modern discourse, with notable contributions including Thomas Hobbes’s Leviathan (1651), John Locke’s A Letter Concerning Toleration (1689), and Jean-Jacques Rousseau’s Discourse on the Arts and Sciences (1750). The renown enjoyed by a small number of thinkers should not, however, divert us from more obscure but equally significant works from the period. The Anglo-Dutch critic and satirist Bernard Mandeville’s The Fable of the Bees (1714, henceforth ‘ Fable ’) is one such work. Through his central argument that the political class did not need to behave morally in order to establish a well-ordered society—hence the famous dictum ‘Private Vices, Publick Benefits’—Mandeville became one of the most controversial figures of the period. This piece will provide a brief account of Mandeville’s thought and the fierce criticism it attracted, before looking at cases of political scandals in post-war Western democracies. The legal and philosophical scholar Edward L. Rubin has compellingly outlined how, in our contemporary era, a ‘morality of self-fulfilment’, in which citizens are primarily occupied with personal interests as opposed to wider ethical commitments, has replaced the forms of Christian piety seen in the 18th century.[1] Viewed alongside Rubin, Mandeville’s thought appears almost prophetic. Though his viewpoints on the merits of capitalism and the cynicism of the political classes were radical to his contemporaries, they seem highly applicable to 21st-century society. Exploring instances of dubious moral conduct by members of the governing classes in modern morally permissive societies, the continuing relevance of Mandevillian thought becomes especially apparent. Morality in a commercial society—Mandeville’s thought In the work of Mandeville, the lay view of 18th-century Britain as a society dictated by monolithic concepts of decency and piety is quickly problematised. Indeed, these concepts are his primary targets. Humans were not a unique species following a divinely-ordained path. On the contrary, in the Fable he argued that ‘Providence should have no greater regard to our species, than it has to flies’.[2] His relegation of religion to the sidelines of discourse was an important aspect of his most prominent argument. Contrary to a movement of moralising writers who feared that commerce and social change would undermine ethics and values, the central thesis of the Fable was to connect these processes together in the couplet ‘Private Vices, Publick Benefits’.[3] He explained that ‘the skilful management of wary politicians’ regulated society. The hive of ‘bees’, a thinly-disguised metaphor for the vibrant, prosperous metropolis of London he had come to call home, were kept afloat by immorality as ‘their crimes conspired to make them great’.[4] Mandeville argued that, contrary to Biblical notions of a benevolent soul influencing human action, ‘Man centres everything in himself, and neither loves nor hates but for his own sake’.[5] He also reduced the good sense of polite society to a mere façade, as opposed to any form of innate morality, as ‘all good manners consist in flattering the pride of others, and concealing our own’.[6] Whilst his side-lining of matters relating to the Church reflected the secular character of Mandeville’s thought, the few references to the place of religion in society reduced it to little more than a tool for cynical social control. At the beginning of Part 1 of the Fable , he outlined his aim to expose the ‘unreasonableness and folly’ of those always ‘exclaiming against those vices’, a clear attack on members of the clergy publishing moralising treatises.[7] Indeed, his lampooning of the established Church went even further, identifying as the most important factors for social stability ‘envy and emulation’, traits which had ‘kept more men in bounds’ than ‘all the sermons that have been preached since the time of the apostles’.[8] In relativising Christian morality to little more than another social more and interpreting the calculating and cunning characteristics of the ruling class as necessary for wider harmony, Mandeville established himself as a highly original and controversial satirist.

Does the law take its own course or is it made to take a certain course? Property cases are notorious for taking forever, but when the crime is murder, i.e., when the state is the prosecutor, and the facts of the case have been ascertained by the most reliable authorities, can justice elude the victim’s families for as long as two or three decades? Or is it made to do so? These questions arise from the way two cases—which should have been front page news but have simply disappeared from the public consciousness—have developed. I. When protectors become predators On 9 January 1993, when Mumbai was in the grip of the second wave of communal riots sparked off by the demolition of the Babri Masjid[1], eight Muslims were shot dead by the police inside the Suleman Usman Bakery and the adjacent madrasa (an Islamic school) in the city’s old Muslim quarter. The trial of those policemen is still on—over 29 years later. If there was ever a case that can be described as an ‘orphan’, this is it. Nobody is interested in it. Those most affected by the incident—the victims’ families—are either unaware of or indifferent to the legal proceedings. The whereabouts of only one of the eight affected families is known: Abdullah Qasim, the son of one of the victims, is now a middle-aged school teacher with a family in Mumbai. The fire within, that propelled him as a 20-year-old to intervene in the initial stages of the case, is seemingly gone. Believing that the killers of his father will never be punished, his involvement is limited to appearing in court when summoned as a witness. He has already done so five times in the space of a year, taking leave from work each time—but every time, his turn to depose hasn’t come. For the Public Prosecutors (PPs) that have handled the case through the years, the tattered, yellowing files present an unpleasant, thankless duty; for the defence, the longer it is delayed, the lower the chances of their clients being brought to book. And for judges, the fact that the case is still pending, almost three decades after the incident at its centre, remains an enigma. ‘ Kasla case ahey ? (What’s this case about?)’. This question, asked with irritation by every new judge (the case record shows it’s meandered through at least 11 courts and 13 judges so far), is like a stab through the heart. If only they knew the words used by a sitting High Court judge to describe the incident! ‘The police behaved in a manner not becoming of a police force of a civilised, democratic state’, concluded Justice B N Srikrishna, heading the one-man judicial commission of inquiry into Mumbai’s post-Babri Masjid demolition riots of December 1992 and January 1993.[2]

Introduction Law centres are providers of legal aid and have been in existence since the early 1970s. Their main role has been to assist those that reside within their local communities. They specialise predominantly in social welfare or ‘poverty’ law as their legal representatives possess detailed knowledge about the problems their local residents face. This article is divided into timeframes and will consider the development of law centres in the UK from 1945 to 2021. Between 1945 and 1970, the Labour Party under Clement Attlee passed the Legal Aid and Advice Act 1949, which enabled legal aid to be funded by the State. The first law centre was created in 1970. Between 1970 and 1986, there was an exponential growth in law centres in the UK; however, the Law Society (of England and Wales) and the State were not supportive of them. Between 1986 and 1997, this article considers the further funding cuts that were made to law centres by the Conservative Party under Margaret Thatcher and John Major. Between 1997 and 2010, the New Labour Party (under Tony Blair) was slightly flexible as they attempted to introduce the Community Legal Partnership Scheme (CLPS), which lacked a clear policy and coordinated funding method, so it failed. Between 2010 and 2021, the Conservative Government decided to further cut funding for law centres, but they have survived through mobilising their efforts in seeking funding from other organisations. The article submits that it was not just the State but also the Law Society’s lack of support for law centres that thwarted their development. This lack of continuity in their development can be traced back to the specific antagonistic relationships between the State, the Law Society on the one hand and the law centres on the other. The Law Society was more concerned about protecting the profession for financial reasons than the public throughout this movement. Secondly, there has never been a clear policy on law centres which has been exacerbated by the lack of a coordinated method of funding throughout the history of this movement. Having a policy would have aided their development as there would have been a clearer funding mechanism in place from the very beginning, which could have also led to uniformity in their operations. It is remarkable how far law centres have developed in terms of the services they offer to the most marginalised section of society despite the insurmountable challenges they have faced over the years due to a lack of funding, policy, and their antagonistic relationship with the State. 1945-1970: Prioritising Poverty Law The Labour Government, led by Clement Attlee, passed the Legal Aid and Advice Act 1949 to add to the social welfare of the State.[1] As a result of this Act, legal aid was funded by the State.[2] The Law Society administered the legal aid scheme alongside the Lord Chancellor for approximately forty years.[3] The Law Society was created in 1845,[4] and it was entrusted by Parliament and awarded ever-widening powers of administration and control over the solicitors’ profession.[5] Around 1948, solicitors in private practice successfully prevented the legal aid scheme from being extended to salaried law centres as they feared losing clients.[6] Further, the Attlee government considered legal advice centres to be a luxury rather than essentiality.[7] This marked the beginning of the antagonistic relationship between the State and law centres.