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Is the Rule of Law a Universal Concept?

Ian Turner at CSIPSIn November 2017 I presented a paper at a Rule of Law conference at the Centre for the Study of International Peace and Security at the University of Westminster in London. The title of the conference was ‘Democracy and the Rule of Law: Relationships, Challenges and Conflicts’. I was presenting my further work on the security theory of the English philosopher Thomas Hobbes, 1588-1679. (For a previous summary of this theory, see: https://uclanlaw.co.uk/2017/10/23/security-from-islamist-terrorism-locke-and-hobbes-liberty-versus-tyranny/). At this conference, I was translating this theory of Hobbes into a collective right of security post 9/11, and Islamic State in Iraq and the Levant (ISIL) in particular. Unlike Sir Jeffrey Jowell (see below), the Rule of Law, for me, is not a neutral, value-free concept; it is merely a liberal construct reflecting a liberal bias within Constitutional law, which views the state as something individuals need to be protected from. I wanted to move the liberal, Rule of Law discourse away from an emphasis on individualism to considerations of collectivism, community etc.

Sir Jeffrey Jowell QC was the keynote speaker. Sir Jeffrey was a former Head of Law at University College, London (UCL), and Director of UCL’s Bingham Centre on the Rule of Law. It was an absolute privilege and an honour to hear Sir Jeffrey speak (despite our disagreements about the nature of the Rule of Law – see above). Sir Jeffrey is a legend of Constitutional Law scholarship having been responsible for writing the principal works on the Rule of Law for many years eg. ‘The Rule of Law Today’ in Jowell and Oliver, The Changing Constitution, 8th ed, 2015, Oxford University Press. The title of his keynote speech was ‘Is the Rule of Law a Universal Concept?’

Sir Jeffrey began by saying that the Rule of Law had received a bad press in recent years. Scholars such as Jeremy Waldron had described the Rule of Law as a ‘confused’ and ‘uncertain’ concept. But, for Sir Jeffrey, the Rule of Law’s continued importance was evident from the recent speech of Lord Reed in the Supreme Court in Regina (Unison) v. Lord Chancellor [2017] UKSC 51. Here the Lord Chancellor’s raising of court fees in employment proceedings was unlawful because of the degree to which it had been a denial of access to justice.

Sir Jeffrey reminded us of one of Constitutional Law’s foremost scholars, A V Dicey. For Dicey there were two important constitutional principles in the UK: Parliamentary supremacy and the Rule of Law. The latter served as an important constraint on the former. Sir Jeffrey noted that more recently Lord Bingham had identified eight key ‘ingredients’ of the Rule of Law; of these Sir Jeffrey wanted to concentrate on four: ‘legality’; ‘certainty’; ‘equality’; and ‘access to justice’.

‘Legality’ requires that we are all under the law; it distinguishes between arbitrary power and rule through laws. It includes the settlement of disputes through law. It also means government according to law; it controls the exercise of discretionary powers and ensures that these powers are exercised for their correct purpose. It permits some governmental discretion but is a constraint on that discretion.

‘Certainty’ permits accessible laws; laws can be changed but there must be a fair warning. ‘Equality’ means that the law is enforced equally between the rich and poor. Sir Jeffrey noted that some countries in the world like China and South Africa claimed to exercise the Rule of Law. But they were ‘legalistic’, they didn’t adhere to ‘legality’; indeed they didn’t subscribe to the fourth and most important element of the Rule of Law: ‘access to justice’. ‘Access to justice’ means a fair trial before an independent judiciary.

Are these four key ingredients of the Rule of Law ‘universal’? Between 2001 and 2011 Sir Jeffrey was the UK’s member of the Council of Europe’s Commission through Law (‘the Venice Commission’) where he assisted with the constitutional and public law of a number of countries. In 2016 the Venice Commission produced a Rule of Law checklist –http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2016)007-e – which continues to be translated into a number of different languages. For Sir Jeffrey the popularity of the checklist, particularly the intention of translating it into so many languages, clearly supported the idea that the Rule of Law was indeed a universal concept.

The four Rule of Law ingredients identified by Sir Jeffrey are all ‘procedural’. I asked him if he thought the Rule of Law should have a ‘substantive’ component. He was pleased with the question. In reply, he thought that human rights such as freedom from torture, Article 3 of the ECHR; a right to liberty, Article 5 of the ECHR; and a right to fair trial, Article 6 of the ECHR, were all examples of the Rule of Law acting ‘substantively’. Indeed, he thought ‘access to justice’ had a substantive component as it allowed individuals to pursue claims of a substantive nature in court. Another question from the audience about the Rule of Law was whether Sir Jeffrey thought that it was an example of ‘natural law’ ie it was a ‘higher order’ law. To this Sir Jeffrey believed that it was; he identified with natural law. He said Lon Fuller (eg the Morality of Law, 1964) was his PhD examiner and, when he was Head of Law at UCL, he persuaded Ronald Dworkin (eg Taking Rights Seriously, 1977, and Law’s Empire, 1986) to leave the University of Oxford and join him at UCL.

There were other presenters at the conference. After Sir Jeffrey’s presentation, I particularly enjoyed the presentation of Mariya Ilyas. Mariya is a Master’s student at the Fletcher School of Law and Diplomacy at Tufts University, Boston, USA. The title of Mariya’s presentation was ‘Religion in American Democracy’. Mariya was critiquing the continued references to Christianity in American democracy, notwithstanding the separation of church and state when the new United States was first created. Examples Mariya gave included: the God-like images of the first President of the US, George Washington; the Christian references in the US ‘pledge of allegiance’ ie ‘one Nation Under God’; and the motto of the US, ‘in God We Trust’, inscribed on the back of the US One Dollar bill. Christianity also featured heavily in the Civil Rights Movement in the 1950s and 1960s, and the speeches of Dr Martin Luther King Jr in particular; as well as the terror actions of the Ku Klux Klan (KKK) in using burning crosses. God Bless America!

Dr Ian Turner

Reader in Human Rights and Security

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‘Intolerance, discrimination and terrorism: a theoretical re-engagement with human rights’

In May 2017 I attended a multi-disciplinary conference at the University of Gdansk in Poland. The theme of the conference was ‘Intolerance, Discrimination and Terrorism’ and was well attended by social scientists from across the world eg Australia, USA, China, Nigeria, Spain and the Czech Republic. As someone who teaches and researches human rights and counter-terrorism, particularly the balance between the two principles, this conference was an ideal opportunity to showcase my recent research on theories of communitarianism and their possible benefits for counter-terrorism thinking.

I particularly enjoyed the presentation given by Abraham Valera Laborda from the Department of Arabic, Islamic, and Oriental Studies at the Autonomous University of Madrid, ‘the clash of Islamic Movements After the Process of Political Change in the Arab World’. Abraham highlighted some real contradictions in the Arab region, particularly after the so-called ‘Arab Spring’ of 2011. Since the 1990s there has been a decline in Islamism generally, so much so that scholars have coined the phrase ‘Post Islamism’. But this has not worked for eg Hezbollah, the militant Islamist group in Lebanon, who continue to receive widespread grassroots support. How does Hezbollah therefore square its traditional Islamist power base, and its support for a political approach to ‘Shia Islam’, with its backing of a secular dictatorship in Syria?

The title of my paper was ‘Intolerance, discrimination and terrorism: a theoretical re-engagement with human rights’. According to the Global Terrorism Index 2016 significant factors causing terrorism, particularly in Europe, are socio-economic ones: inequality, youth employment and drug crime (p.5). Indeed, in Changes in Modus Operandi of Islamic State Revisited, Europol, 2016, the vast majority of terrorist attackers in Europe have been young men with a criminal past, who were not strict Muslims and only recently converted to Islam (p.8). This was therefore particularly apt at the time of the conference because it immediately proceeded the terror attack on Westminster Bridge in London. The attacker responsible, Khalid Masood, born Adrian Russell Ajao, was a Muslim convert, of African-Caribbean descent, with a history of violence spanning 20 years.

Historically, human rights are ‘negative’ ie ‘freedoms from the state’ eg ‘freedom from torture’, ‘freedom from slavery’. This reflects traditional liberal fears that the state is itself a threat to the human rights of the individual, see, for example, John Locke, The Two Treatises of Government, 1690, so individuals need protecting from it. But since the 9/11 attacks, for example, in New York and Washington, is the state still the principal threat to human rights and the security of the individual? In my paper, I argued that, following the year-on-year terror attacks in the UK and our European allies since 9/11, collectively we needed to be protected from non-state actors such as suspected terrorists, not the state, so ‘rights talk’ should move away from its traditional liberal perspectives which are excessively individualistic.

‘Communitarian’ theorists such as Amitai Etzioni eg The Spirit of Community: Rights, Responsibilities, and the Communitarian Agenda, 1993, and Rights and the Common Good, 1995, want to redress the balance between individual rights and social responsibilities, otherwise society is, and will continue to be, self-centred and driven by social interests. Noting the nature of recent Islamist terrorists in the West – many are recent Muslim converts – and the factors affecting their recruitment – inequality, unemployment, crime etc – I sought to justify communitarian thinking as a way of re-engaging with community and social groups, particularly individuals within them vulnerable to radicalisation and extremism.

Dr Ian Turner

Reader in Human Rights and Security

Staff at the development day at Brockholes, July 2017
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Head of School Blog: Setting the assessment calendar

In a blink of an eye, term has not only started, but we are fast approaching the mid-way point of semester 1 and with that, the onset of the first assessments of the academic year.  I was speaking to some of you this week and the issue of assessment deadlines came up, with complaints about early assessments in some modules.  It became apparent that as students, you have no understanding of how assessment deadlines are set – because we had never sought to explain the process!  This blog aims to rectify that and explain the process of setting our assessment schedule.  It is an incredibly important task at the beginning of the academic year and one that is done in consultation with all staff.

Each course goes through a validation process every 4/5 years and as part of that, it is agreed how many assessments each module should have and what these assessments should be e.g. coursework, presentation, exam.  Each year, an assessment schedule is set at course level which states when each assessment should be handed in.  This is published to all of you at the beginning of the academic year so that you can plan your workload accordingly.  We are consequently, very reluctant to deviate from this schedule and will do so only in exceptional circumstances.

So, how is it set?  Well, we have to wait for Jupiter to align with Mars and then with a neap tide and the sun rising in the east …  No, it may seem that we leave it to fate but nothing is further from the truth.

In July this year, we had a staff development day during which we began to consider the 17/18 academic calendar.

Staff at the development day at Brockholes, July 2017

Staff at the development day at Brockholes, July 2017

Teaching schedules on foam boards with push-pins representing assessments

Teaching schedules on foam boards with push-pins representing assessments

In true Blue Peter style, the teaching timetable for each year of each course was put onto foam board and stuck up on the walls.  Push-pins were then given to staff with a different colour representing each type of assessment (red for coursework, yellow for presentation etc).  Module teams then put the pins onto the teaching timetable where they wanted their assessment deadlines to fall.  So far so good.

We then stood back and looked at the teaching timetable and the spread of the pins representing the assessment deadlines.  Inevitably, a lot of the pins were bunched together as most modules want to have a mid-assessment point and an end of assessment point.  However, overlapping assessment deadlines is one of the main things that you complain about, understandably, as this causes undue stress as you are unable to commit adequate time to each assessment.  The purpose of the foam boards and push-pins is therefore to ensure an even spread of assessment, throughout each course, over the academic year.  This allows you to give due attention to each assessment and reduces the stress experienced when multiple assessments fall on the same date/week.

Having considered the initial spread of pins, each course team then sought to re-position some pins so there was a spread of assessments throughout the academic year, reducing bunching of assessment as much as is possible.  Module teams negotiate as to who does what and when.  Compromise is key and the student experience is paramount. In doing this, staff know that whilst the deadline may not be ideal if we take the module in isolation, it is in the best place that it can be when we consider your workload over the course of the year.  You do not study one module at a time!

Consultation and negotiation as push-pins are moved and assessments are spread throughout the academic year.

Consultation and negotiation as push-pins are moved and assessments are spread throughout the academic year.

The push-pins and the foam boards are then translated onto a paper timetable and sent around to all staff for further consultation and comment.  Some more negotiation and tweaking occurs.  The schedule is then set and published to all of you.

So, it is a consultative process and every member of staff is invited to contribute and agrees on the deadlines.  By publishing the schedule at the start of the academic year, you can plan your workload and staff can ensure that appropriate material is covered for the assessment questions that they set.

Whilst we seek perfection, I have no doubt that we inevitably fall short.  We know that we can always improve and we always seek to do so.  We will take into account your feedback in setting the deadlines for next year – so let us know!

If there is anything else that you would like me to explain by way of a blog then email me jcanthony@uclan.ac.uk.

Onwards and upwards …

lord duckling

 

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Security from Islamist Terrorism: Locke and Hobbes = Liberty Versus Tyranny?

In September 2017 I attended the 14th Annual Conference of the Manchester Centre for Political Theory (MANCEPT) at the University of Manchester. As the title of the conference suggests, it was a political theory conference, but the nature of the philosophy discussions was broad ranging: I was in a legal theory stream, ‘Change of Law in a Democratic State: Normative Foundations and Factual Processes.’ Indeed, even within our specific theoretical stream, there was a real variation in the papers presented. For example, Dr Elvira Basevich had travelled to Manchester from the University of Michigan, Dearborn, in the United States, and was talking about the American sociologist, WEB Du Bois, 1868-1963. Du Bois is relatively unknown outside of America. Elvira was assessing du Bois’s critique of democracy and dissent in the ‘Jim Crow era’. (The ‘Jim Crow era’ was roughly a period after the American Civil War, 1865-1877, when there was some semblance of federal protection for former slaves.)

Being a human rights lawyer, I particularly enjoyed the presentation given by Dr Stephen Riley of the University of Leicester: ‘Human Rights: Change not Rationalisation.’ Stephen reminded us that, presently, human rights are under attack. Rather than before, when the burden of proof was on the state to justify rights’ infringements, human rights are now on the ‘backfoot’ eg. the challenges of nationalism, mass migration etc. But rather than ‘rationalising’ rights, we need to reflect on societal change to meet these contemporary challenges. We must keep faith with rights; changes to institutions to cope with these challenges are much more preferable.

My paper was on social contract theory, particularly the social contract theory of the English philosopher Thomas Hobbes, 1588-1679. Being a human rights lawyer, but also someone with a particular research interest in security and counter-terrorism, I am interested in the balance between the rights of the individual and the degree to which the state must interfere with these individual rights to provide security and protect the people from acts of terrorism. Thomas Hobbes sought for human rights to be sacrificed, in a social contract between individuals, for the purpose of vesting absolute power in the sovereign, gifted with the power of protection. So this ‘Hobbist’ theory of the state is very relevant to us today, particularly in protecting us from the Islamist ideology of Islamic State in Iraq and the Levant (ISIL). But Hobbes is rejected by many for conferring too much power on the state in this bargain of protection, since the ‘Hobbist’ sovereign is, itself, a threat to the security of the individual. In my paper, I sought to show that ‘Hobbist’ social contract theory is much more liberal than most people think and therefore is highly relevant to today’s discussions about the proper balance between human rights and security.

Dr Ian Turner

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LLB Student Awarded a Travel Bursary to Jersey 💼✈️

Matthew Knights is a year 1 LLB student who was awarded a travel bursary to visit Jersey and explore the different judicial systems

“The picturesque island of Jersey is a self-governing state and British Crown dependency situated off the coast of Normandy in the English Channel. The legal system of Jersey has concepts of both British and French law intertwined together as a result of its political and social history. In addition to this, the island was occupied by Nazi forces from 1940-1945 and has undergone many legal changes throughout its history. It’s system of government and public law system is also distinctly different from the UK albeit with some similarities.

The islands court system is completely  independent from the UK and takes on its own unique format and hierarchy. Its principle officers and high ranking officials however, are appointed indirectly by the Crown. The highest-ranking official is the Lieutenant Governor of Jersey, appointed by the British Monarch. The holder of this office acts as an intermediary between the UK and the independent government of Jersey. They are the de facto head of state but only act in a ceremonial manner such as issuing passports and ruling on deportations. They serve five year terms and are usually ex-military personnel. As of 2010, positions such as Attorney General and Solicitor General are appointed by the Crown on the islands recommendation.

Jersey 3

The highest court in Jersey is the Court of Appeal but second to this is the Royal Court. The Royal Court sits in one of two formations. The first is known as a Superior Royal Court and involves the Bailiff sitting alongside at least seven Jurats. The second is the Inferior Royal Court where the Bailiff sits alongside only two Jurats and the formation used will be determined by the gravity of the offence committed.

Jurats are the nearest thing to what the UK would refer to as Judges. They are elected by an Electoral College which consists of the Royal Court and legal professionals. Unlike in England where judges will have previously worked as either a Solicitor or a Barrister; Jurats are not legal professionals because it is deemed that they should be judges of the facts and not the law.

The island has its own police force but there are two types in operation across the islands 12 parishes. The States police, which mirrors our system in England and Wales, had uniformed officers as early as 1853. In 1954 a professional force was established. The second and more unusual type is the Honorary Police. These are elected to assist the parish’s Connétable who is elected to serve a three-year term.  Despite being the seemingly more recognisable outfit; the States of Jersey Police cannot charge anybody with an offence. Any charges must be authorised by the Connétable of the respective parish.”

Law School Events, Law School Visits, Student Experience

Law Students Enjoy a Leadership and Cultural Course in Mauritius ☀️

Students from Lancashire Law School jumped at the amazing opportunity to undertake a Leadership and Cultural course in Mauritius!

Mauritius - Group
Two of our students have shared their thoughts on the experience with us…

Chantelle Gardner

“My personal goal was to go on at least one trip a year; last year I visited London with the Law Society. Initially when I received the email about the leadership and cultural course in Mauritius I replied straight away without a second thought! Just one of the amazing experiences that Lancashire Law School has to offer. As a mature student with two children opportunities such as this do not happen regularly. I also would like to add that I am also disabled and the lecturers were very understanding on my bad days.

After a jam-packed year 2 this was a perfect way to wrap up my year. I also hate flying so I am trying to conquer my fear of flights! A course, a beautiful destination and meeting new people; not only with my law school but the Mauritian law school as well. I enjoyed getting to know the 2nd year students more and also speaking to 3rd year students about what to expect for the next year. It was so valuable to be able to listen to students and get advice about the year ahead. For some students, this could be their first trip abroad and going on these trips you really do get to know different people from all different backgrounds. I personally enjoy meeting new people especially from different cultures.  These trips are vital, as not only are they educational, they look great on your CV and they can be great discussion in an interview.

The lecturers put an excellent spin on their styles of teaching and it was not death by PowerPoint! We had presentations on the beach, one to one psychometric tests in hotels and a negotiations scenario which we had to do independently.  The lecturers also kindly organised one evening for us to enjoy some Mauritian cuisine and watch Sega dancing which is the native Mauritian dance. The team building days were great and I loved the dodo quest, which I believe is like the escape room. My favourite parts of the course were the psychometric tests and the negotiation competition. The psychometric test really made students think about themselves and become mindful about what employers may want. Although I had never heard of these tests prior to the course, once I was aware, I pretty much knew how mine would show. It has really made me think as the work route I want to go down is very dominant which is not really me! The negotiation task was great as we worked with the Mauritian students. Our group was very varied and therefore there was lots of discussion and people stamping their feet! I really enjoyed the course and would encourage anyone to attend at least one trip whether it be in the UK or abroad.”

Rebecca Rushworth

“When the opportunity arose to go on a once in a lifetime trip to Mauritius to visit the campus, bond with foreign students and make amazing memories, who could possibly turn that down?

I went to Mauritius on the 12th May 2017. We spent one week there and it was hardly a week I would forget. The cost of this trip was £500, including Emirates flights, the stay in a hotel for the week plus transport to and from campus and various activities. It was well worth the £500!

To begin with, we had the first night off. We landed late and we were tired after the long flight. After checking into the hotel, we decided we wanted to have a look around to see where about we were and what was going on! It turned into one of the best nights I have had! I bonded with students I had not met before and turned out we was a little worse for wear the day after…

Following this spontaneous first night, we then visited the campus and met the Mauritian students. We received our itinerary for the week. It was a jammed packed week full of various meetings, visits and activities as well as free time to enjoy as we please. The days we spent during the week at the campus was a good experience, we joined with the Mauritian students and got to know them a little better. However, there were classroom activities inside when it was a beautiful 28 degrees outside! Us English students wanted to make the most of that weather!

Before we flew to Mauritius, we had a questionnaire to fill in online for a personality test, which we received feedback when we were away. I found that really interesting. The feedback fit my personality accurately and I was shocked as to how relevant it was. We had a BBQ on the beach one night, getting to know students, lecturers, and we also visited another hotel for dinner and to watch a Mauritian dance.

We had a trip to the Dodo quest! The whole team really enjoyed this activity and my team won so it was even better! Finally, the highlight of my week has to be the deep-sea fishing trip I undertook with a few fellow students and our lecturer, Martin. On the Friday before flying home, we was picked up at 3am. We got onto a boat, watched the sunrise over the island and went fishing! I loved it and very grateful to Martin for arranging it all.

Finally, the leadership course has taught me many skills that I will carry through and grow with. I have made friends for life and got to know people I would not have known if it was not for this trip. The lecturers; Steph, Susan and Martin did a great job and really got involved with the students, the conversations and banter! I could not have put a better team together.

I am very grateful to the Law school for putting this trip together and I do sincerely hope that it carries on as an annual trip for Law students; it is well worth the money. The experience was amazing and I wish I could do it all over again! Thank you!”

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Sarah ‘Takes Off’ with UCLan’s International Travel Bursary ✈️

Sarah Collinson

Criminology & Criminal Justice (Year 3)

Sarah applied for an International travel bursary to travel across Europe to improve employability skills, particularly confidence as she moves to a career in the Probation Service.

“I am back home after having the amazing opportunity exploring more of Europe. The highlight of my trip was learning about the history of each place I visited and seeing some more of the world.

 

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Auschwitz is a must see for anyone visiting Poland! Being able to stand in the place where such horrible things happened less than 80 years ago is an unforgettable experience, as you can see from my photos. Photo (1) above shows the entrance to Birkenau, another part of the Auschwitz concentration camp that was built because Auschwitz itself was not big enough to fit all 1.3 million people (mostly Jews), between 1940 and 1945. Sufferers of the awful abuse that happened at this camp were brought into the camp in the small cabin that is pictured above (2). This would carry 70 people that would have been traveling from other parts of Europe for numerous days. The ones that survived the journey would be put into lines on their arrival to the camp, these lines decided if they were going to be gassed or would be subject to slave labour. The picture of the shoes (3) is just a fraction of the belongings of those that were sent to be gassed. The last photograph shows the remains of a room where the gassed bodies would be disposed of, this room does not stand today because it was attempted to be destroyed to cover up this horrible war crime.

Parts of Europe offer some of the most beautiful places, I visited Lake Bled in Slovenia which has breath-taking views! Krka Waterfalls in Croatia and the gardens in Austria where the Belvedere palace is situated.

 

Most of the countries I visited had lots of historic buildings that were great to visit. Prague in particular had beautiful historic buildings. Whilst in Prague I went to the museum of medieval torture museum, it was interesting to see the torture instruments that were used on people that would not even be considered criminals now! Often women who were believed to be witches would be subject to unimaginable methods of pain.

 

Another amazing part of my trip was visiting Berlin and learning about the divide that east and west Berlin had from 1961 until 1989. In my photograph (above), I am stood between a part of the Berlin wall that stopped the two sides of the city from communicating during the cold war.

Most of my trip contained a huge amount of walking around every place I visited, so I could enjoy as much of Europe as possible in the month I was there. So, it was nice to spend a day in a Budapest thermal bath.

My trip around Europe has given me the opportunity to broaden my knowledge of the countries I visited at present time, from spending time with local people I met at hostels and venturing around the place.  I also visited lots of museums that taught me about historic Europe, as mentioned earlier in my blog. It has been great learning about more of the world, this trip has influenced me to visit Asia, so I can learn even more about different places and cultures.

Since being home, I have realised that one of the things exploring Europe has helped me with is my confidence. I met loads of new people in Europe from all over the world. When at home, I am used to spending my time with the same people. I now feel more confident when meeting new people. This is brilliant at this point in my life as I have just graduated from university and am working towards getting a career within the Probation Service, where I will be meeting new people on an everyday basis.

Also, my trip has definitely helped me to become more organised. From booking international trains, using numerous trains to get to a destination and booking different accommodation for all the countries I visited. I had to document times and places to ensure that I got to each place I needed to be on time.”