This article presents the results of an empirical study designed to assess the degree of convergence and divergence between public opinion and the fictional Fair Minded Observer (‘FMO’) used to determine whether a judge ought to be disqualified on the grounds of possible bias. As part of the test for apparent bias, judges have to imagine whether an FMO would see a risk of bias on the part of the judge. Although the courts have never definitively stated whether the FMO is meant to represent an ideal or average member of the public, to the extent that the FMO is partly meant to reflect public perception, the obvious weakness in the test is that no one has tested public attitudes to the risk of judicial bias specifically. In our study, we conducted nationally representative public surveys in both the UK and Australia, asking respondents what they think about different situations of possible bias (N=2064). Our results, in the form of descriptive statistics, indicate that a gap exists between the FMO created by the courts and public opinion in both the UK and Australia. This gap extends across a number of areas thought to give rise to possible bias, including financial interests and relationships and the risk of prejudgement, as well as fact patterns based on leading cases. There are methodological limitations in nationally representative opinion surveys, which make it difficult to measure informed and reasonable public opinion. While further research would be desirable, if the law of bias continues to be partly framed around the need to maintain public confidence in the legal system, law and policy makers will need to take some account of the results of studies such as this one.
{"title":"What the Fair Minded Observer Really Thinks About Judicial Impartiality","authors":"Andrew Higgins, Inbar Levy","doi":"10.1111/1468-2230.12631","DOIUrl":"https://doi.org/10.1111/1468-2230.12631","url":null,"abstract":"This article presents the results of an empirical study designed to assess the degree of convergence and divergence between public opinion and the fictional Fair Minded Observer (‘FMO’) used to determine whether a judge ought to be disqualified on the grounds of possible bias. As part of the test for apparent bias, judges have to imagine whether an FMO would see a risk of bias on the part of the judge. Although the courts have never definitively stated whether the FMO is meant to represent an ideal or average member of the public, to the extent that the FMO is partly meant to reflect public perception, the obvious weakness in the test is that no one has tested public attitudes to the risk of judicial bias specifically. In our study, we conducted nationally representative public surveys in both the UK and Australia, asking respondents what they think about different situations of possible bias (N=2064). Our results, in the form of descriptive statistics, indicate that a gap exists between the FMO created by the courts and public opinion in both the UK and Australia. This gap extends across a number of areas thought to give rise to possible bias, including financial interests and relationships and the risk of prejudgement, as well as fact patterns based on leading cases. There are methodological limitations in nationally representative opinion surveys, which make it difficult to measure informed and reasonable public opinion. While further research would be desirable, if the law of bias continues to be partly framed around the need to maintain public confidence in the legal system, law and policy makers will need to take some account of the results of studies such as this one.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":"84 1","pages":"811-841"},"PeriodicalIF":0.9,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/1468-2230.12631","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46820682","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Citizen Led Policing in the Digital Realm: Paedophile Hunters and Article 8 in the case of\u0000 Sutherland\u0000 v\u0000 Her Majesty's Advocate","authors":"Allison M. Holmes","doi":"10.1111/1468-2230.12653","DOIUrl":"https://doi.org/10.1111/1468-2230.12653","url":null,"abstract":"","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2021-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/1468-2230.12653","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41401730","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In Privacy International and Quadrature Du Net, the Grand Chamber of the Court of Justice of the European Union (‘CJEU’) ruled that the e-Privacy Directive and EU Charter on Fundamental Rights generally prevent national law from enabling bulk retention and transmission of traffic and location data. However, in Quadrature Du Net, the Court clarified that EU law does not preclude indiscriminate data retention measures when Member States can prove serious threats to national security. In such cases, bulk data can only be retained during a strictly necessary period and the decision must be subject to review by a court or independent administrative body. The judgments will have serious implications for other data retention and sharing arrangements, such as the PNR, the proposed e-Privacy Regulation and e-Evidence package, international data sharing agreements, and also the third countries seeking adequacy decisions under the GDPR, including post-Brexit UK. The rulings suggest that CJEU has become an important actor in national security landscape, which has been outside the scope of European integration, but has become a ground for political struggle between the EU institutions and Member States. Yet, while Privacy International is an unequivocal assertion of CJEU’s authority in the area of national security and a victory for data protection, Quadrature Du Net does not oppose indiscriminate data retention in principle and is an ambivalent response by the CJEU in the face of political pressure.
在Privacy International和Quadrature Du Net中，欧盟法院大庭裁定，电子隐私指令和欧盟基本权利宪章通常阻止国家法律允许流量和位置数据的批量保留和传输。然而，在Quadrature Du Net中，法院澄清说，当成员国能够证明对国家安全的严重威胁时，欧盟法律并不排除不分青红皂白的数据保留措施。在这种情况下，批量数据只能在严格必要的时间内保留，并且该决定必须接受法院或独立行政机构的审查。这些判决将对其他数据保留和共享安排产生严重影响，如PNR、拟议的电子隐私条例和电子证据包、国际数据共享协议，以及根据GDPR寻求充分性决定的第三国，包括脱欧后的英国，这已经超出了欧洲一体化的范围，但已经成为欧盟机构和成员国之间政治斗争的基础。然而，尽管Privacy International明确宣称了CJEU在国家安全领域的权威，并取得了数据保护的胜利，但Quadrature Du Net原则上并不反对不分青红皂白地保留数据，这是CJEU在面临政治压力时的矛盾回应。
{"title":"A Struggle for Competence: National Security, Surveillance and the Scope of EU Law at the Court of Justice of European Union","authors":"Monika Zalnieriute","doi":"10.1111/1468-2230.12652","DOIUrl":"https://doi.org/10.1111/1468-2230.12652","url":null,"abstract":"In Privacy International and Quadrature Du Net, the Grand Chamber of the Court of Justice of the European Union (‘CJEU’) ruled that the e-Privacy Directive and EU Charter on Fundamental Rights generally prevent national law from enabling bulk retention and transmission of traffic and location data. However, in Quadrature Du Net, the Court clarified that EU law does not preclude indiscriminate data retention measures when Member States can prove serious threats to national security. In such cases, bulk data can only be retained during a strictly necessary period and the decision must be subject to review by a court or independent administrative body. The judgments will have serious implications for other data retention and sharing arrangements, such as the PNR, the proposed e-Privacy Regulation and e-Evidence package, international data sharing agreements, and also the third countries seeking adequacy decisions under the GDPR, including post-Brexit UK. The rulings suggest that CJEU has become an important actor in national security landscape, which has been outside the scope of European integration, but has become a ground for political struggle between the EU institutions and Member States. Yet, while Privacy International is an unequivocal assertion of CJEU’s authority in the area of national security and a victory for data protection, Quadrature Du Net does not oppose indiscriminate data retention in principle and is an ambivalent response by the CJEU in the face of political pressure.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2021-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/1468-2230.12652","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43611970","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Abuse of Rights in English Contract Law: Hidden in Plain Sight?","authors":"Solène Rowan","doi":"10.1111/1468-2230.12647","DOIUrl":"https://doi.org/10.1111/1468-2230.12647","url":null,"abstract":"","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2021-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/1468-2230.12647","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43333035","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Octavio L.M. Ferraz, Health as a Human Right: The Politics and Judicialisation of Health in Brazil, Cambridge: Cambridge University Press, 2021, xxii + 340 pp, hb £85.00.","authors":"Natalia Pires de Vasconcelos","doi":"10.1111/1468-2230.12645","DOIUrl":"https://doi.org/10.1111/1468-2230.12645","url":null,"abstract":"","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2021-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/1468-2230.12645","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43573981","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"KaiAmbos et al , Core Concepts in Criminal Law and Criminal Justice, Volume 1: Anglo‐German Dialogues, Cambridge: Cambridge University Press, 2020, 504 pp, hb £110","authors":"Brenner M. Fissell","doi":"10.1111/1468-2230.12641","DOIUrl":"https://doi.org/10.1111/1468-2230.12641","url":null,"abstract":"","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2021-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/1468-2230.12641","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45382356","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Jessie Blackbourn, Fiona de Londras and Lydia Morgan, Accountability and Review in the Counter-Terrorist State, Bristol: Bristol University Press, 2020, 192 pp, pb £27.99","authors":"H. Fenwick","doi":"10.1111/1468-2230.12640","DOIUrl":"https://doi.org/10.1111/1468-2230.12640","url":null,"abstract":"","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2021-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/1468-2230.12640","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47967658","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Douglas Morris, Legal Sabotage: Ernst Fraenkel in Hitler's Germany, Cambridge: Cambridge University Press, xv + 235 pp, hb, £85.00","authors":"David Fraser","doi":"10.1111/1468-2230.12642","DOIUrl":"https://doi.org/10.1111/1468-2230.12642","url":null,"abstract":"","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2021-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/1468-2230.12642","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45205758","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Cass R. Sunstein and Adrian Vermeule, Law & Leviathan: Redeeming the Administrative State, Cambridge, MA, Harvard University Press, 2020, 208 pp, hb £20.95","authors":"Conor Casey","doi":"10.1111/1468-2230.12639","DOIUrl":"https://doi.org/10.1111/1468-2230.12639","url":null,"abstract":"","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2021-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/1468-2230.12639","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49171959","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Simon Stern, Maksymilian Del Mar and Bernadette Meyler (eds)\u0000 ,\u0000 The Oxford Handbook of Law and Humanities\u0000 , Oxford, Oxford University Press, 2020, xix + 892 pp, hb £125.00","authors":"J. Gaakeer","doi":"10.1111/1468-2230.12643","DOIUrl":"https://doi.org/10.1111/1468-2230.12643","url":null,"abstract":"","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2021-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/1468-2230.12643","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44752627","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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