The regular article tracking developments at the national level in key European countries in the area of IT and communications – Co-ordinated by Herbert Smith LLP and contributed to by firms across Europe

This column provides a concise alerting service of important national developments in key European countries. Part of its purpose is to compliment the Journal's feature articles and Briefing Notes by keeping readers abreast of what is currently happening “on the ground” at a national level in implementing EU level legislation and international conventions and treaties. Where an item of European National News is of particular significance, CLSR may also cover it in more detail in the current or a subsequent edition.     

Hypothetical intentionalism in statutory interpretation

Intentionalism is the view that an utterance （understood broadly as a spoken phrase, a written text, or even a gesture） means what its utterer intends to mean by it. In the philosophy of language, Grice＇s version of intentionalism rules the day, but intentionalism in statutory interpretation has well-known enemies. Antonin Scalia argues that the search for the intentions of actual legislators destroys the publicity of law and leads judges into fact-finding rather than rule-application. The author argues for a sophisticated version of intentionalism according to which the utterer of law is not an empirical individual or group of individuals but a hypothetical sovereign. The meaning of a legal text is whatever an ideally rational and reasonable communicator would intend to mean by it. By divorcing the meaning of law from the actual intentions of sometimes-conflicted and insincere legislators, this theory preserves the publicity of law and helps avoid fact-finding. Furthermore, it does justice to canons of construction （e.g., ejusdem generis, noscitur a sociis）, which seem to aim at what an ideally rational and reasonable lawgiver would mean by a given legal text. Finally, hypothetical intentionalism accords with actual judicial practice, at least in the United States Supreme Court, where justices often seem to tacitly assume that the utterer of law always expresses her meaning in the best possible way.     

The effect of repeated questioning on children's accuracy and consistency in eyewitness testimony

Purpose. In police interviews children may be asked the same question many times. We investigated how the number of repetitions and the interval between those repetitions affected the accuracy and consistency of children's responses. Methods. 156 children aged 4–9 years watched a staged event and were interviewed individually 1 week later. Children were asked eight open‐ended questions, which were each repeated a further four times (making a total of forty questions). Half these open‐ended questions could be answered from information in the event, and half were unanswerable (so children should have said ‘don't know’ in response to these questions). The questions were repeated in gist form. The interval between an initial question and its repetitions was varied by use of other questions and twenty non‐repeated filler questions. The intervals between repetitions were immediate repetition, repetition after a delay of three intervening questions, after a delay of six intervening questions, and after ten or more intervening questions. Results. Over a quarter of children's responses to repeated questions changed, usually resulting in a decline in accuracy, particularly after the first repetition. Subsequently, the number of repetitions and delay interval had little effect on responses to answerable questions although accuracy to unanswerable questions continued to decline. Conclusions. Question repetition had a negative affect on children's consistency and accuracy. For unanswerable questions in particular, the more often a question was repeated the more likely children were to invent a response.