Ian Cram's Publications
Citizen Journalists Newer Media, Republican Moments and the Constitution, Elgar Monographs in Constitutional and Administrative Law series (Edward Elgar Publishing, 2015),
This monograph explores the phenomenon of ‘citizen journalism’ from a legal and constitutional perspective. It describes and evaluates emerging patterns of communication between a new and diverse set of speakers and their audiences. Drawing upon political theory, the book considers the extent to which the constitutional and legal frameworks of modern liberal states allow for a ‘contestatory space’ that advances the scope for non-traditional speakers to participate in policy debates and to hold elites to account.
Law of Contempt, 4 (London: LexisNexis Butterworths, 2010),
Terror and the War on Dissent (Springer, 2009),
Contested Words: Legal restrictions on freedom of speech in liberal democracies, Applied Legal Philosophy (Ashgate, 2006), ix,233p,
A Virtue Less Cloistered: Speech, Courts and Constitutions (Hart Publishing, 2002), xxxvi,226p,
‘Protocol 15 and articles 10 and 11 ECHR—The partial triumph of political incumbency post-Brighton?’, International and Comparative Law Quarterly 2018,
DOI: 10.1017/S0020589318000118, Repository URL: http://eprints.whiterose.ac.uk/128478/
Protocol 15 inserts a new recital into the Preamble of the European Convention on Human Rights (ECHR) which affirms the primacy of national authorities in securing the effective realization of Convention rights. The article discusses the context for Protocol 15, notably the Brighton Declaration, and the democratic principles it engages. A selective retreat from substantive supranational review towards systemic supranational review in political expression cases may be occurring. The article questions the emerging pattern by which newer and transitional democracies remain subject to strict levels of supranational scrutiny, whilst their more established counterparts look set to be the main beneficiaries.
‘Amending the constitution’, Legal Studies, 36.1 (2016), 75-92,
How easy ought it to be to enact constitutional amendment? In the absence of constitutionally prescribed procedures, fundamental reforms in the UK can often appear hurried, under-consultative and controlled by transient political majorities. In the recent referendum on Scottish independence, the NO campaign’s promise of additional powers to Holyrood in the face of a possible ‘Yes’ vote appears to fit this pattern (even if, for reasons of political sensitivity, it was not driven directly by members of the Coalition government). A recent sample of concluded constitutional reforms, including the Constitutional Reform Act 2005, the Constitutional Reform and Governance Act 2010 and the Fixed-term Parliaments Act 2011, have drawn criticism from within Westminster on the grounds of defective process. Specific options to improve pre-parliamentary and parliamentary stages of constitutional reform have been proposed with a view to attaining principled procedures of constitutional reform removed from executive control that signal attachment to process values such as wide and effective consultation, deliberation outside and inside Parliament, and informed scrutiny. The foregoing prescriptions for remedying defective processes may, however, be said in the ultimate analysis to retain a normative preference for a more formal, elite-managed vision of constitutional change that is premised upon a limited conception of the citizens’ ‘informed consent’. In any case, in purely descriptive terms, top-down managed change does not capture the totality of patterns of past constitutional reform in the UK. In the nineteenth and early twentieth centuries, for example, radical grassroots campaigns for the extension of the franchise resulted ultimately in universal adult suffrage. More recently, the Scotland Act 1998 can be seen as the culmination of a civic society–led, deliberative engagement with ordinary voters over decades that offered an alternative vision of ‘bottom-up’ constitutional reform to that seen in more formal, elite-led processes of constitutional reform. The inclusive and participatory nature of the campaign for Scottish devolution marked out a radically different model of constitutional reform to that which has typified Westminster-style amendment and which is still largely directed by political elites. In such circumstances as prevail currently at Westminster, it is difficult to give much credence to claims that the outcomes of constitutional reform processes enjoy the ‘informed consent’ of the people.
‘Stop, look, listen: the university’s role in counterterrorism Does the UK’s Prevent strategy go too far in its demands on institutions? A group of experts share their perspectives’, Times Higher Education 2016,
The recent attacks by Islamic terrorists in Paris and San Bernadino, California have once again focused feverish political attention on measures to prevent radicalisation. The attacks came shortly after UK universities became subject to the Counter-Terrorism and Security Act 2015, which controversially obliges academics to monitor students for signs of radicalisation. Universities are also required to deny a platform to radical speakers unless the risk of audience members being drawn into terrorism can be “fully mitigated”. By 22 January, English universities must submit a self-assessment of their level of preparedness to comply with their new duties to the Higher Education Funding Council for England. But are universities really incubators of radicalism? And are the Prevent requirements proportionate and workable? Will they have the desired effect? And how do they compare with the approaches of other countries?
‘Dealing with the googling juror: a commentary on Part 3 of the criminal Justice and Courts Bill’, Communications Law, 19.4 (2014), 110-113,
Repository URL: http://eprints.whiterose.ac.uk/82877/
Considers new legislative proposals to formalise criminal penalties for jurors who away from the courtroom engage in private research about persons and events at issue in the trial.
‘The Law Commission's Contempt proposals - getting the balance right?’, Criminal Law Review, 2013.6 (2013), 465-482,
Considers the proposals of the Law Commission's consultation paper of November 2012 for the reform of the law of contempt by publication in respect of pre-trial publicity about criminal suspects, including: (1) the establishment of an "at risk" period when this publicity would be scrutinised particularly for contempt; (2) changes to the threshold test; (3) procedural issues relating to contempt by publication cases; (4) changes to the rules on the use of reporting postponement orders; and (5) the regime's application to online publishers and social media users.
‘Failing Justice Brennan’s Quest? Anticipating Terrorism Risks and the US Supreme Court’, Public Law: the constitutional and administrative law of the commonwealth, 2013 (2013), 30-51 (Accepted),
‘Twitt(er)ing Open Justice’, Law, Justice and Journalism 2012,
Threats posed by the Googling juror to the administration of justice
‘Coercing communities or promoting civilised discourse? Funeral protests and comparative hate speech’, Human Rights Law Review, 12.4 (2012), 455-478,
Extreme speech forms pose acute questions for liberal democracies. Abstract, non-absolute constitutional commitments to freedom of speech/expression are required to be interpreted against countervailing values such as equality, privacy and social harmony. On this side of the Atlantic, the rich body of First Amendment analysis generated by the US jurists is frequently dismissed as an outlier among the group. The emphasis there upon individual freedom and distrust of state power is said to miss the collective dimension of human existence and the rightful role of the state in promoting caring, empathetic communities. In what follows, tensions between the United States and UK/European attitudes towards the limits of constitutional protection for speech are analysed through the lens of the US Supreme Court’s ruling in Snyder v Phelps. I argue that, despite the undoubted nastiness of the speaker’s words and intentions in that case, the more censorious European response to such abuse is underpinned by a troubling attempt to enforce a degree of homogeneity upon political discourse. The state’s aim in so coercing may appear benign. However we should not lose sight of the fact that, so empowered, temporary political majorities may impose a range of speech restrictions that ultimately diminish personal autonomy under the guise of advancing the common good.
‘The "War on Terror" on Campus’, Journal for the Study of Radicalism, 6 (2012), 1-34,
‘Hemming's Way’, Solicitors Journal, 155.21 (2011), 12-13,
‘Beyond Lockean Majoritarianism? - Emergency, Institutional Failure and the UK Constitution’, Human Rights Law Review, 10.3 (2010), 461-485,
‘Terrorism investigations and the coerced disclosure of journalists materials’, Communications Law, 14 (2009), 40-45,
‘Resort to foreign constitutional norms in domestic human rights jurisprudence with reference to terrorism cases’, Cambridge Law Journal, 68.2009 (2009), 118-141 (Accepted),
‘Constitutional responses to extremist political associations - ETA, Batasuna and democratic norms’, Legal Studies, 28.1 (2008), 68-95 (Accepted),
Modern democratic practice assumes the existence of rival political parties, each generating sets of policies and competing with the others for an opportunity to put their programme into effect at election time. Denial of access to the political process is therefore an extremely serious step for a democratic state to take, curtailing not only the freedoms of members to campaign and represent the party, but also the opportunity for like-minded voters to express their support at the ballot box. Indeed, the motives for a ban might be highly suspect such as advancing the electoral chances of the governing party or forcing a unitary political identity upon members of the polity. The discussion in Part 1 frames the account of the Spanish state’s evolving stance towards radical Basque separatists (and their political emanations) in Part 2. A detailed account of the Law of Political Parties and its reception in the national courts is provided in this section of materials. Finally, Part 3 considers the likely response of the European Court of Human Rights to the proscription of Batasuna and raises broader questions regarding the compatibility of ECHR jurisprudence with prevailing values in liberal political philosophy. This section queries the consensus view that the Strasbourg Court is likely to uphold the ban, arguing instead that, on the question of the proportionality of proscription, there is scant support in Article 11 jurisprudence for states to mount a ‘pre-emptive’ strike at anti-democratic parties. The discussion in Part 1 frames the account of the Spanish state’s evolving stance towards radical Basque separatists (and their political emanations) in Part 2. A detailed account of the Law of Political Parties and its reception in the national courts is provided in this section of materials. Finally, Part 3 considers the likely response of the European Court of Human Rights to the proscription of Batasuna and raises broader questions regarding the compatibility of ECHR jurisprudence with prevailing values in liberal political philosophy. This section queries the consensus view that the Strasbourg Court is likely to uphold the ban, arguing instead that, on the question of the proportionality of proscription, there is scant support in Article 11 jurisprudence for states to mount a ‘pre-emptive’ strike at anti-democratic parties.
‘Constitutional responses to extremist political associations – ETA, Batasuna and democratic norms’, Legal Studies, 28 (2007), 68-95,
‘Judging rights in the UK – The Human Rights Act and the new relationship between Parliament and the courts’, Review of Constitutional Studies, 12.1 (2006), 53-81,
The purpose of this article is to describe and account for the limited form of increased judicial input on rights disputes involving public authorities accorded to the courts under the United Kingdom’s Human Rights Act 1998. Specific attention is paid to the Act’s central provisions; namely the ‘interpretative duty’ set out in section 3 to render domestic statutes compliant with the European Convention on Human Rights and the declaration of incompatibility in section 4. The discussion asks whether, notwithstanding its ostensible commitment to parliamentary sovereignty, the Act is best understood as a ‘constitutional’ statute as a consequence of which the courts are required to apply a generous or non-literal interpretation to rights guarantees
‘Regulating the Media: some neglected freedom of expression issues in the United Kingdom's counter-terrorism strategy’, Terrorism and Political Violence, 18.2 (2006), 335-355,
This article takes a critical look at a range of existing and proposed restrictions on media freedom prompted by the war on terror. Reference is also made to counter terrorist strategies in the United States and Spain that have impacted upon media organisations
‘Political Expression, Qualified Privilege and Investigative Journalism’, Canterbury Law Review 2005, 143-162,
Analysis of post Reynolds v Times developments in teh law of qualified privilege, drawing upon NZ Law Reform Commission and other comparative materials to argue that English law is now reining in to an excessive degree scope for investigative journalism
‘Film Licensing in New Zealand and the limits of constitutional protection for artistic expression’, Entertainment Law Review 2004, 243-248,
‘Reducing uncertainty in libel law after Reynolds v Times Newspapers? Jameel and the unfolding defence of qualified privilege’, Entertainment Law Review 2004, 147-150,
‘Unconstitutional conditions? – Public libraries, federal subsidies and the Internet: United States v American Library association Inc’, Communications Law, 8.6 (2003), 417-419,
‘Hate Speech, The First Amendment and Cross Burning in the United States’, Communications Law, 8.6 (2003), 389-395,
‘Treason, Felony Act 1848: Publications in favour of Republicanism; Declaratory Judgments’, Journal of Criminal Law, (2003) (2003), 33-36,
‘Criminalizing Child Pornography - A Canadian Study in Freedom of Expression and Charter Judicial Review of Legislative Policy Making’, Journal of Criminal Law 2002, 359-373,
‘Beyond Madison? The U.S. Supreme Court and the regulation of sexually explicit expression’, Public Law, 2002.WIN (2002), 743-757,
‘L'Harmonisation de la Liberte d'Expression en Europe’, Maastricht Journal of European and Comparative Law, ed. by Board E, 8.4 (2002), 417-422,
‘Children, Sexually Explicit Materials on the Internet and the First Amendment’, Communications Law, 6.6 (2001), 186-190,
‘Criminal Contempt, Article 10 and the First Amendment’, Maastricht Journal of European and Comparative Law, 7.1-29 (2000),
‘Automatic reporting restrictions in criminal proceedings’, European Human Rights Law Review, 1998 (1998), 742-753,
‘Minors' Privacy and the Courts’, Public Law: the constitutional and administrative law of the commonwealth, 1997 (1997), 410-419,
‘Towards a Better Public Law?’, Public Administration: an international quarterly covering public administration throughout the world, 74.2 (1996), 239-253,
‘Judicial Review and Environmental Law - Is there a coherent view of standing’, Legal Studies, 16 (1996), 1-26,
‘Towards Good Administration - The Reform of Standing in Scots Public Law’, Juridical Review: law journal of Scottish universities 1995, 332-344,
‘Interfering with Gaol Mail- Prisoners' legalLetters and the Courts’, Legal Studies, 13 (1993), 356-370,
‘Blasphemy, the Public Sphere and Democratic Self-Government’, in Blasphemy and Freedom of Expression: Comparative, Theoretical and Historical Reflections after the Charlie Hebdo Massacre (Cambridge University Press, 2017), 87-113,
‘Comparative Constitutional Bills of Rights’, in Mapping the Path towards Codifying - or Not Codifying - the UK Constitution - Case studies on constitution building (Westminster: House of Commons, 2014), 146-155,
Repository URL: http://eprints.whiterose.ac.uk/80326/
Discusses substantivew and procedural issues around adoption/rejection of Bills of Rights in other liberal democracies
‘Twitt(er)ing Open Justice’, in Justice Wide Open (London: Centre for Law, Justice & Journalism (CLJJ) City University, London, 2012), 93-99,
Impact of Facebook, Twitter and other electronic social media on fairness of jury trials
‘Reconciling fair trial interests and the informed scrutiny of public power - An analysis of the United Kingdom's contempt of court laws’, in Il rapporto tra giusticia e mass media, ed. by Resta G (Editoriale Scientifica, 2010), 63-90,
‘The Danish Cartoons, Offensive Expression and Democratic Legitimacy' in (eds I Hare & J Weinstein) Extreme Speech and Democracy (2009, OUP Oxford) 311-330’, in Extreme Speech and Democracy, ed. by Hare and Weinstein (Oxford: OUP, 2009), 311-330,
‘Hate Speech and Disabled Persons; Some comparative constitutional thoughts’, in Disability Rights in Europe, ed. by Gooding and Lawson (Hart, 2005), 65-84,
‘JUDICIAL INTERVENTION IN DEMOCRATIC POLICY-MAKING - THE CASE OF FREE SPEECH’, in El Impacto de la Carta Canadiense de Derechos y Libertades (1982-2002) Perspectivas Europeas, ed. by al ACE (Kadmos, Salamanca, 2003), 223-236,
Judicial intervention in the policy choices of elected, democratically accountable decision-makers in liberal democracies is problematic. It gives rise to what Christopher Manfredi has called the 'paradox of liberal constitutionalism' in which unelected judges restrict the freedom of popularly elected majorities to make policy decisions. In the case of Canada, some commentators have gone so far to say that the Charter of Rights and Freedoms has contributed to a diminishment of democratic dialogue, supplanting it with 'rights' talk. Ordinary Canadians are, on this view, less involved in political processes as increasingly major constitutional questions are settled in the Courts. In this chapter, I look at the record of the Court in free speech disputes under s.2(b) of the Charter to gauge the frequency of, and justifications for, judicial intervention in legislative policy making. A particular focus is offered by the recent Supreme Court decision in Sharpe concerning a challenge to the offence of possessing child pornography laid down in the Criminal Code. Sharpe required the Court to address a number of highly important constitutional issues including the extent of Charter protection for low value expression; the appropriate degree of deference that the Court ought to show towards both the legislature's evaluation of empirical evidence linking possession of child pornography with harm to children and its subsequent line drawing between protected expression and the prevention of harm to children. I suggest that the Court has not always shown a properly contextualized approach to review in freedom of expression cases. In particular, Sharpe and earlier cases manifest a reluctance on the part of the Court to relegate non-political forms of speech to a position of lesser importance in the hierarchy of speech types or to countenance its corollary of less intense judicial scrutiny. An arguably more sophisticated approach to constitutional adjudication would attach greater significance in a democracy of leaving more obviously representative institutions such as the federal Parliament and provincial legislatures a margin of discretion to reach policy decisions in areas of complex social regulation (including areas of the criminal law). In this approach, the particular context of speech claims would be given close consideration. Thus, viewed against the central rationales for Charter protection for expression, the peripheral nature of certain speech forms (obscene speech, commercial advertising) and the fact that they undermine other, core Charter values point towards a variable standard of judicial review.
‘The Vital Freedom: The Treatment of Freedom of Expression Interests in the European Court of Human Rights and the Tribunal Consticional’, in The Spanish Constitution in the European Constituional Context, ed. by Dykinson SA (The Spanish Constitution in the European Constituional Context, 2003), 1603-1628,
‘Young Persons, Criminal proceedings and open justice - a comparative perspective’, in The Yearbook of Copyright and Media Law, ed. by Firth BE (OUP Oxford, 2000), 5, 141-165,
‘Media ethics’, in Media ethics, ed. by Kieran M (Psychology Press, 1998), 97-110,
8 Beyond Calcutt The legal and extra-legal ... announced the setting up of an ' Inquiry into Privacy and Related Matters', to be chaired by David Calcutt QC. ...
‘Minors' Privacy and Freedom of Expression’, in The Yearbook of Media and Entertainment Law, ed. by Barendt E (Oxford University Press, 1997), 3, 31-52,
‘Freedom of expression and social media’ Protection of Human Rights in the UK Constitution, National University Taipei, 29/10/2014 - 29/10/2014,
considers free speech implications of criminal laws used to regulate online expression
‘Open Justice - A Comparative Perspective and a Common Problem’ Justice Wide Open, City University, London, 29/02/2012 - 29/02/2012,
‘Media freedom and the administration of justice - The UK experience’ Il rapporto tra giustizia e mass media, University of Bari, Italy, 04/07/2008 - 05/07/2008,
‘Satire, cartoons and offensive expression’, in Conflicts in Fundamental Rights, Human Rights Centre, University of Ghent (Conflicts in Fundamental Rights, Human Rights Centre, University of Ghent, 2006),
This paper takes as its focus the clash between protection for freedom of expression and the avoidance of offence to persons with religious beliefs. I question whether the ECtHr deference to national authorities' restrictions on offensive expression is really justified, particulalrly in the light of cartoons depicting the prophet Muhammed.
‘Legal constitutionalism defended? Some thoughts about the judicialization of rights in the UK’, in Comparative Constitutionalism and Rights: Global Perspectives (Comparative Constitutionalism and Rights: Global Perspectives, 2005),
‘The confidentiality of journalists' sources’, in Media Law after the Human Rights Act (Media Law after the Human Rights Act, 2003),
Judicial remedies for individuals before the highest court - a comparative perspective, in Judicial remedies for individuals before the highest court - a comparative perspective - The United Kingdom, (Brussels, Belgium: European Parliamentary Research Service, 2017),
DOI: 10.2861/062436, Repository URL: http://eprints.whiterose.ac.uk/129860/
The study presented below forms part of a larger project whose aim is to provide a comparative analysis of the rights of individuals in law proceedings before the highest courts of different States and before certain international courts. The objective is to describe the various remedies developed under domestic law that are available through the UK courts including the Supreme Court which, though not a constitutional court in the classic Kelsenian model, does sits at the apex of the appellate court structure in the UK. The study commences with an historical introduction which stresses the absence in domestic law of a clearly delineated sense of what counts as ‘constitutional’ .In traditional accounts of the UK Constitution there is no hierarchy of higher order ‘constitutional’ and ‘ordinary’ Acts of Parliament. Neither has a separate court structure developed to handle exclusively constitutional claims, although specialised ad hoc tribunals do exist in public law contexts. The underpinning principles remain (i) the doctrine of parliamentary sovereignty and (ii) the rule of law. After this introduction, a review is provided of the main remedies and procedures used for the redress of grievances against public bodies. In a subsequent section of materials, a table of the main sources of individual rights against the state is provided. The domestic status of constitutional conventions and international law are dealt with in this part. Then, an account of the substantive norms informing the standards of effective protection for the individual is given, including some critical commentary on the operation of key provisions. The concluding section compares the benefits and drawbacks of specialised tribunal adjudication, the ‘politicised’ nature of certain judicial review proceedings against a background of increasing privately-owned provision of services to the public and the continuing relevance of private law tort claims where compensation for mistreatment at the hands of the state is sought.
Lessons from America? Response to Dept of Constitutional Affairs Consultation Paper 'Broadcasting the Courts, ([n.pub.], 2005),
Submission to DCA on Broadcasting the Courts. Focus is on US access rules and empirical evaluations. Argues that a number of fears raised by opponents of broadcasting have not materialised.
Penalising the googling juror. Reflections on the futility of Part 3 of the Criminal Justice and Courts Bill (2013-14), (UK Constitutional Law Association, 2014),
Repository URL: http://eprints.whiterose.ac.uk/80922/
This blog takes as its focus provisions in Part 3 of the Bill which seeks to put on a statutory footing offences connected with private research by jurors. I suggest that resort to the criminal law constitutes a clumsy, impractical and unnecessarily punitive attempt to regulate the extra-curial activities of the modern, online juror. It is incumbent on our lawmakers to explore more imaginative responses to the undoubted problem of jurors’ access to untested, internet materials – responses that might be more obviously premised upon an appreciation of jurors’ dutiful efforts to arrive at just verdicts.
How changeable ought constitutions to be? Comment on relative flexibility/rigidity of Greek, UK, US and German Constitutions
The ‘war on terror’ on campus threatens important freedoms, (LSE, 2012),
free speech issues posed by counter radicalisation measures aimed at UK universities
The tweet that bombed - the twitter joke trial, the internet and the judges, (The Guardian, 2012),
Comment on the case of Paul Chambers whose conviction for sending a menacing message via Twitter was quashed by the High Court
Media reporting of courts and tribunals, (Oxford: OUP, 2008): 768-769.,
Journalistic privilege, ([n.pub.], [n.d.]): 646-647.,
Entry for New Oxford Companion to Law