ECJ provides further guidance on the ambit of database right

Following on from the European Court of Justice's ruling on database right in the Directmedia case, the Court has looked in more detail at the protection afforded by database right, and provided further clarification of the meaning of ‘extraction’ and ‘substantial’, particularly in relation to modular databases comprised of several sections. The ECJ's ruling is positive for database owners for the most part, bolstering its previous broad interpretation of the acts of ‘extraction’ that can infringe and considering in more detail other points touched on in the Directmedia, British Horseracing Board and Fixtures Marketing cases. This article discusses the outcome and implications of the ruling.     

New directions in policing fraud: The emergence of the counter fraud specialist in the United Kingdom

Fraud and corruption in the public sector have become issues of increasing importance for the government in the United Kingdom. Numerous initiatives have emerged ranging from high profile publicity campaigns against benefit fraud and tax evasion to the establishment of specialist bodies, such as the NHS Counter Fraud and Security Management Service (NHSCFSMS). One of the most interesting developments, however, has been the emergence of the ‘counter fraud specialist (CFS)’ across central and local government, as well as the private sector. These are specially trained civilian personnel who are tasked to prevent, investigate and secure sanctions against fraudsters. They undertake common training packages and are accredited by the Counter Fraud Professional Accreditation Board (CFPAB). This paper first outlines the emergence of the CFS; then draws upon the results of recent survey data to discuss some of their characteristics. The paper also considers some of the main issues raised by the growth of the CFS including the possible emergence of an embryonic ‘fraud police’, the indirect ‘load shedding’ of fraud investigation and the governance of this new breed of policing personnel.     

Immunohistochemical quantification of pulmonary mast-cells and post-mortem blood dosages of tryptase and eosinophil cationic protein in 48 heroin-related deaths

Recent studies suggest that many fatal heroin overdoses are caused by anaphylactoid reaction. In the present study we measured tryptase and eosinophil cationic protein in post-mortem blood of 48 deaths after heroin injection. We also investigated the presence and pulmonary distribution of mast-cells using specific immunohistochemical antibody for tryptase and morphometric evaluation in those cases of heroin-related deaths. The data were compared with 44 subjects who died following head trauma and to 32 cases of fatal anaphylactic shock. In the heroin-related death cases, the measurements of serum tryptase levels and eosinophil cationic protein dosages resulted in particularly elevated concentrations compared with the trauma cases. Nevertheless, the data that our study supplies by immunohistochemical techniques indicate that when mast-cells count in the lung was determined, no definite pattern was obtained between fatal heroin overdose cases and the control groups. Furthermore, the wide range of morphine concentrations found in post-mortem blood samples suggest that the term ‘overdose’ is relative and does not sufficiently characterize death associated with heroin addiction. Our study confirms that elevated concentrations of serum tryptase are associated with many heroin-related deaths. At this moment to attribute the cause of these deaths to ‘heroin overdose’ ignores the likely causal contribution of other possible systemic reactions to the mechanism of death.     

Michel Foucault: Regimes of Punishment and the Question of Liberty

‘Sex abuse’ has recently become an object of knowledge of the human sciences and thereby, juridical punishment. While not diminishing the problem of sexual violence, this paper explains the intensification of the sexual abuse discourse as contingent upon an incitement to talk about it in a ‘confessional society’. The paper argues that notions such as ‘normality’, ‘deviance’ and therefore (ab)use, are produced by power and are, consequently, contestable. It examines the ways that under the current punitive disciplinary rationality, there is an imperative of continuous production of knowledge that incites the sex abuse discourse. In a liberal society, failure to determine such knowledge is a threat to liberty and thereby, liberalism itself.     

Fictions of Origin: Law,Abjection, Difference

This article seeks to offer a critique of what it terms ‘Law-as-Logos’ (the Western conceptualisation of ideal Law in terms of pure ‘Presence’) from a perspective that combines some of the insights of contemporary psychoanalytic, deconstructive and feminist theory with recent developments in critical legal studies. The essay seeks to offer a re-theorisation of law, not as ‘Logos’ but as ‘difference’. The law, it will be argued, exists only as that arbitrary point of demarcation between the space of the sacred and the space of the abject and, to re-orient psychoanalytic readings of abjection towards a Derridean understanding of differance, the law may be articulated as the ‘trace’ that makes ‘presence’ possible whilst at the same time threatening its total erasure. Law-as-difference thus becomes maddening in its capacity to establish and erase boundaries and the second part of the essay examines this phenomenon particularly in the context of the relation between law-as-difference and the textuality of a Law that requires to be ‘put into writing’. It argues, in conclusion, that a theorisation of law-as-difference raises inevitably the question of the relation of ‘woman’ to the law and it ends with a re-positioning of the figure of Antigone as a means of interrogating the relation of the ‘feminine’ within the Western symbolic economy to the scandalous impurity of law-as-difference.¹ P. Goodrich, Languages of Law: From Logics of Memory to Nomadic Masks (London: Weidenfield and Nicolson, 1990), 268     

Colonialism and the health transition: Aboriginal Australians and poor whites compared, Victoria, 1850–1985

This paper presents the results of the first two longitudinal historical cradle-to-grave datasets constructed in Australia: the Aboriginal population of the state of Victoria, reconstituted backwards using genealogical research and vital registrations, 1835–1930; and an impoverished European population born at the Melbourne Lying-In Hospital, 1857–1900 and traced until 1985. It investigates the hypothesis that the health transition in indigenous people was different from that of the dominant non-indigenous population. Both of these studied sub-populations were highly stressed, resulting in high infant mortality and persistent tuberculosis mortality. The Aboriginal population suffered the additional burdens of racism and social exclusion, even though after the passage of the 1886 ‘Half-Castes Act’, the majority of Aboriginal Victorians were legally ‘white’. The impact of that legislation and the systematic exclusion of Aboriginal Victorians from federal entitlements in the twentieth century sent the Aboriginal health transition into reverse. The contrasting fates of poor whites and ‘unofficial blacks’ during the health transition demonstrate the health burdens of inequality and racial discrimination, and reveal that ‘the gap’ in life expectancy between Indigenous and non-Indigenous Australians is a historical product of long-term government policy and exclusion from citizenship and its entitlements.     

A snapshot of legal developments and industry issues relevant to information technology, media and telecommunications law in key jurisdictions across the Asia Pacific – Co-ordinated by Lovells and contributed to by other leading law firms in the region

This column provides a country by country snapshot of the latest legal developments, cases and issues relevant to the IT, media and telecommunications industries in key jurisdictions across the Asia Pacific region. The articles appearing in this column are intended to serve as ‘alerts’ and are not submitted as detailed analyses of cases or legal developments.     

A snapshot of legal developments and industry issues relevant to information technology, media and telecommunications law in key jurisdictions across the Asia Pacific – Co-ordinated by Lovells and contributed to by other leading law firms in the region

This column provides a country by country snapshot of the latest legal developments, cases and issues relevant to the IT, media and telecommunications industries in key jurisdictions across the Asia Pacific region. The articles appearing in this column are intended to serve as ‘alerts’ and are not submitted as detailed analyses of cases or legal developments.     

Families, Foreignness, Migration

Introducing the special issue on ‘Families, Foreignness and Migration. Now and Then’, this essay starts from the observation that in Western Europe migrating with or without one's family in the last century was increasingly shaped by state policies. As a result, migrants' identities and family experiences not only depended, and still depend, on their cultural backgrounds but also on very time-specific politics of foreignness and citizenship. The essay's main argument is that comparing and deconstructing perceptions, policies and practices of ‘family’ and migration help to overcome the limited attention given to age and kin in the study of gender and migration. From an overview of contributions to this interdisciplinary issue, it is clear that deconstructing ‘family’ in migration studies should be developed further along three axes: child migration, the multi-level analysis of family and migration, including societies of origin and migrant organizations, and the comparison of ‘visible’ and ‘invisible’ migrants, which contributes to uncovering the relationship between foreignness, gender and age.     

Police shooting as a method of self-harming: A review of the evidence for ‘suicide by cop’ in England and Wales between 1998 and 2001

There is increasing evidence that some individuals actively seek to bring about their own deaths by provoking armed police officers to shoot them. The current paper examines 22 police shooting incidents, nine fatal, between 1998 and 2001, to assess the likelihood of suicidal motivation in each of these cases. All 22 individuals shot were male, 18 were white, three black and one Asian and ages ranged from 18 to 51. Around half of the shootings examined have some evidence indicating a suicidal motive in those shot, with further indications of irrational behaviour in a number of the other cases. This has clear implications for the choice of police strategy in responding to such incidents and an imperative to develop ‘less lethal’ options to minimise the risk to such vulnerable populations.     

The challenge of identification following the tragedy of the Solar Temple (Cheiry/Salvan, Switzerland)

On October 5, 1994, 48 members of the Sect of the Solar Temple were found dead at two different locations in Switzerland: 23 victims in Cheiry and 25 victims in Salvan. Our Institute was commissioned to solve the forensic problems presented by this tragedy. Our goals were to establish the time of death, determine its causes, help elucidate the surrounding circumstances and identify the victims. This work presented us with the following challenges

• this catastrophe was of an ‘open’ type: there were no lists of ‘passengers’;

• the victims were of five different nationalities and many had just arrived in Switzerland to participate in this event;

• family ties were very complex within the group;

• half of the victims were burned and sometimes charred;

• the exceptionally intense media coverage of the story put a lot of pressure on the investigators and our Institute.

In spite of these difficulties, all the victims were positively identified within 1 month. In the present report, we describe the steps realized to progress in our work. A special section describes our relationship with the journalists and their invaluable help in our investigations. The importance of being prepared for such an event is discussed.     

Family in Dutch migration policy 1945–2005

This article looks at how and why the concept of ‘family’ was used in Dutch migration policy in the period between 1945 and 2005. Throughout this period differences were made between migrant women and migrant men. Whereas the migration of men was associated with labour migration, the migration of women was equated with family migration. Migrant women were constructed as wives and mothers (and not as workers). This construction of women was combined with a victimhood discourse in which women were presented as victims of repressive religion (usually Islam), domestic violence, trafficking and prostitution, and discriminatory government policy. The victimhood discourse was successfully used to acquire rights for migrant women (mostly the right to stay), but as a result all migrant women came to be seen as vulnerable and in need of protection. In this article, I show how this combined family and victimhood discourse was used by governments, by (migrant) organizations and, to a lesser extent, in court cases to create differences between migrant men and women. The ‘success’ of the victimhood discourse is not only explained by the fact that it fitted (Western) ideas on femininity. It was also used to give a humanitarian face – albeit beneficial to women only – to an essentially restrictive immigration policy.     

Going for the throat: Carnivore in an Echelon World — Part I

Carnivore is a surveillance technology, a software program housed in a computer unit, which is installed by properly authorized FBI agents on a particular Internet Service Provider’s (ISP) network. The Carnivore software system is used together with a tap on the ISP’s network to “intercept, filter, seize and decipher digital communications on the Internet”. The system is described as a “specialized network analyzer” that works by “sniffing” a network and copying and storing a warranted subset of its traffic. In the FBI’s own words “Carnivore chews on all data on the network, but it only actually eats the information authorized by a court order”. This article, in two parts, will provide an overview of the FBI’s Carnivore electronic surveillance system. The Carnivore software’s evolution, its ‘prey’ and the system’s relationship with Internet Service Providers will be the focus of the study. (Although the FBI’s Carnivore surveillance system is now officially called DCS1000, as the surveillance system is more commonly referred to as “Carnivore”, that term will be used throughout). Also addressed in the article are misconceptions about Carnivore, publicly available sniffer programs, Carnivore’s functionality, methods to counter Carnivore as well as the software’s limitations. In addition, the pertinent American law allowing for wiretapping and electronic surveillance as well as programs and policies outside the United States regarding electronic surveillance are surveyed, and an overview of ECHELON, the global interception and relay system, is provided. The aim is to provide the paper’s readers with a better understanding of these surveillance systems: naturally, only through an in-depth knowledge can the benefits and dangers they present for the public (government), private (individual communications users) and technical industry (ISPs) be understood.     

A retrospective analysis of cardiovascular deaths: A 5-year autopsy study of 1045 cases in Antalya,Turkey

This study aims to identify the macroscopic and microscopic changes that occur in the heart in different causes of cardiovascular death and sudden cardiac death in autopsy cases and evaluate the difficulties that a forensic practitioner may encounter during autopsies. All forensic autopsy cases in the Morgue Department of the Council of Forensic Medicine, Antalya Group Administration between January 1, 2015, and December 31, 2019, were examined, retrospectively. The cases were chosen according to inclusion and exclusion criteria, and their autopsy reports were examined in detail. It was determined that 1045 cases met the study criteria, 735 of which were also met the sudden cardiac death criteria. The top three common causes of death were ischemic heart disease (n = 719, 68.8%), left ventricular hypertrophy (n = 105, 10%), and aortic dissection (n = 58, 5.5%). The frequency of myocardial interstitial fibrosis was significantly higher in deaths due to left ventricular hypertrophy than in deaths due to ischemic heart disease and other causes (χ²(2) = 33.365, p < 0.001). Despite detailed autopsy and histopathological examinations, some heart diseases that cause sudden death may still not be detected.     

Introduction: Structure or strategy? Essays on family, demography, and labor from the Dutch N.W. Posthumus Institute

The concept of ‘family strategies’ has yielded much valuable research when used in the classic ‘quantitative’ and ‘anthropological’ approaches to the history of family life. Its continued use as a research concept requires, however, that significantly more attention be paid to the relationships between families as social units and their individual members, to the great variety of families and households, and to the different motives that guided families in charging strategies. These questions are brought to the forefront when the history of the family is investigated cross-culturally and comparatively, as the articles of this Special Issue, written by researchers of the Dutch N. W. Posthumus Institute, seek to do.     

Doing family: Responses to the constructions of ‘the migrant family’ across Europe

This paper draws on how constructions of ‘the migrant family’ in political discourse influence migrants' and their families' lives. In specific national contexts, ‘the migrant family’ is determined according to the national and European debates and expressed by their respective rules and regulations. By ‘doing family’, migrants and their families develop strategies in order to fit these requirements of living a certain family life. Fulfilling specific norms and perceptions which are not necessarily required for the majority of society is a precondition to succeed. Who is and who is not part of the family, who holds responsibility — such aspects have to be proved and repeatedly reproduced by migrants and their families. This not only affects their position in society, but also has strong implications on their lives as a couple and family, since it requires the continuous adaptation and reconstructions of their everyday reality.     

Morphology and phenomenology of death by kicking (II)

In the years from 1982 to 1995, 20,504 autopsy cases were examined at the Departments of Forensic Medicine in Hamburg and Greifswald. In 103 cases death was caused by kicking. In the Greifswald area, the occurrence of kicking as the cause of death could be demonstrated in 68 cases (30% of all homicides), which is in contrast to the observations in Hamburg, were kicking amounted to only 2.5% of the homicides. Most of the victims (average age 44 years) were under the influence of alcohol (mean blood alcohol concentration 1.75/1000), and most were on social support. The victims often showed other signs of blunt trauma such as blows with the fist and strangulation. In a few cases, cutting and stabbing wounds were also found. In the majority of cases death was due to severe haemorrhages and aspiration of blood in addition to the direct effects of the head injuries. The crimes were committed by one person in 46 cases, two in 20 and three in 4 cases. The perpetrators (average age 27.6 years) were always younger than the victims. Case reports show that fatal kicking was mostly triggered by relatively trivial arguments. None of the incidents were preplanned by the perpetrators. In contrast to an expected higher incidence of kicking deaths in the urban area of Hamburg, these crimes occurred ten times more frequently in the rural area of Greifswald.     

Legal Practice and Modes of Dying: Bruno Latour,Technology and the Critical Legal Instance

Few who have ever observed the workings of a legal office would have witnessed a lawyer engaged in file management. Of course, lawyers, together with their clients, will construct the narrative that makes up the file, but the lawyer will not store it, nor see that it is properly labeled, nor ensure that its contents are in place, nor dust it, nor, finally, remove it for disposal at the end of whatever time is deemed sufficient for it to perform all of its functions. At a time when lawyers are being criticized for their levels of client care this paper explores the opportunities that the handling of the legal file affords for the development of an ethic of care that can then be transposed more broadly across legal practice. The essence of the argument is that the legal file is (as much as the client) a proper object of care, and that the care of the file – its maintenance and management – is an appropriate objective for lawyers, and necessary for the development of a legal profession that is truly ‘client-centered’. The argument is developed in three parts, and is largely informed by Bruno Latour’s works on being and technology as developed in We Have Never Been Modern, Aramis or the Love of Technology, and particularly, in an essay, published in 2002, entitled ‘Technology and Morality: The Ends of the Means’. The first part explores how the handling of the legal file exposes those engaged in this activity to legal histories, legal philosophies and legal ethics. The second part explores the content or nature of the obligation of care owed toward the file by the keeper of the file. It argues that the legal file represents human passions quelled or suppressed by legal conflict, and that ‘technical action’, falling broadly under the rubric of maintenance and handling, are ways in which care is expressed when the object of care is supine, dead or passing. The concluding part advances the care of technology as a means of preventing technological domination, or, in the terms of legal practice, the care of the file as a means of deflecting the development of a file culture.     

The influence of the type of accelerant, type of burned material, time of burning and availability of air on the possibility of detection of accelerants traces

The presented research consisted in a series of field experiments and laboratory analyses of obtained samples. Their aim was to investigate how different factors influence the possibility of identification of accelerant traces in conditions that are as similar as possible to those of real fires. The studied factors were: type of burned material, type of accelerant, length of time between lighting and extinguishing of fire and the air availability level. The obtained results show that, among investigated factors, the type of burned material has the greatest influence. The other factors, with regard to their influence, could be ranked in descending order as follows: ‘other’ (hard to determine and regulate factors), type of accelerant, time of burning and air availability. ‘Other’ factors include arrangement of the burned material and dispersion of the accelerant.     

Asia-Pacific news

This column provides a country by country analysis of the latest legal developments, cases and issues relevant to the IT, media and telecommunications' industries in key jurisdictions across the Asia Pacific region. The articles appearing in this column are intended to serve as ‘alerts’ and are not submitted as detailed analyses of cases or developments.