bluuebunny/crossref_metadata_2025 huggingface dataset:
6. International organizations
Authors: Hernández Gleider
Published: August 2019

This chapter looks at international organizations, their differences to States, and their position within the international legal order. Today, international organizations exist in virtually all fields of transnational and global collective concern. In the broadest sense, they facilitate international cooperation in all areas from the harmonization of tariffs to the management of delicate ecosystems, and range in their scope from small bilateral commissions regulating transboundary resources to regional security and economic organizations, all the way to the universalist aspirations of the UN. The chapter then considers the question of establishing the legal personality of international organizations under international law, which must be distinguished from the question of whether an international organization may also hold legal personality under the domestic law of a State.
7. The law of treaties
Authors: Hernández Gleider
Published: August 2019

This chapter describes the law of treaties. As defined in Article 2(2) of the Vienna Convention on the Law of Treaties (VCLT), a treaty can be embodied in a single instrument, or in two or more related instruments. It is a written agreement; between international legal subjects; and governed by international law. In short, a treaty must be written in order to fall under the scope of the VCLT. Though this does not mean that oral agreements have no effect in international law, it does mean that the law of treaties embodied in the VCLT does not govern oral agreements. While States are the most active actors entering into treaty relations, international organizations may also enter into treaties, whether between them or with a State. Ultimately, because a treaty’s purpose is to create binding international legal obligations, the law of treaties applies to agreements governed by international law.
8. Jurisdiction
Authors: Hernández Gleider
Published: August 2019

This chapter studies jurisdiction. The term ‘jurisdiction’ is generally understood by international lawyers as describing the extent, and limits, of the legal competence of a State, entity, or regulatory authority, to make, apply, and enforce legal rules with respect to persons, property, and other matters. Jurisdiction is the necessary corollary to State sovereignty under modern international law, for it represents the exercise of authority of that State in relation to conduct, or to consequences of events, that it deems itself competent to regulate. The quintessential areas of regulation that would be regarded as falling within the domestic jurisdiction of a State include the setting of conditions for the grant of nationality and the conditions under which aliens (non-nationals) may enter a State’s territory. The chapter then distinguishes the types of jurisdiction: prescriptive jurisdiction, enforcement jurisdiction, and adjudicative jurisdiction.
9. Immunities
Authors: Hernández Gleider
Published: August 2019

This chapter explores the concept of immunities. Immunity from jurisdiction describes the doctrines developed in domestic courts over time to avoid infringements on State sovereignty whenever possible. Generally speaking, immunities seek to prevent foreign courts from exercising jurisdiction regarding the conduct of another State, its agents, officials, or diplomatic representatives, as well as from adjudicating on inter-State disputes without their consent. Due in part to the historical conflation of State and sovereign that defined the scope of immunity, several mechanisms have been developed that allow various categories of officials of States to invoke immunity in the courts of another State. Often an exemption from local jurisdiction exists in relation to mundane violations such as driving offences or administrative matters. However, exemption from jurisdiction has important policy implications if the act in question would constitute an international crime.
17. International criminal law
Authors: Hernández Gleider
Published: August 2019

This chapter describes international criminal law. International criminal law represented a fundamental shift for international law. Historically, international law regarded accountability and responsibility almost purely through the lens of the State and contained neither substantive rules nor the requisite institutions to prosecute an individual. Today, there exist several institutions, most prominently the International Criminal Court (ICC), which have given shape both to the substance of the crimes themselves and to the method for their effective prosecution. Through international criminal law, the criminal responsibility and liability of individuals, even if acting in groups, are now addressed internationally. There is a category of indisputable ‘core crimes’ under customary international law: genocide, crimes against humanity, war crimes, and aggression. These are helpfully defined in an ICC document called the ‘Elements of Crimes’, which is intended to guide the Court in the interpretation and application of these crimes.
1. Watching the watchers: Theory and research in policing studies
Authors: Bowling Benjamin , Reiner Robert , Sheptycki James
Published: August 2019

This chapter offers a broad introduction to the study of policing. It first outlines the concepts of police and policing, and the long-term evolution of these processes, with an emphasis on the idea of policing as an aspect of social control. There is discussion of the notion of the police as a body of people patrolling public places in blue uniforms, with a broad mandate of crime control, order maintenance, and some social service and specialist functions. The chapter then considers various sources of police research ranging from journalists and academic institutions to official government-related bodies, think-tanks, and pressure groups. It also looks at the development of police research. The concluding section offers an analysis of the vexed conceptual relationship between policing and politics.
2. Theories and models of police and policing
Authors: Bowling Benjamin , Reiner Robert , Sheptycki James
Published: August 2019

The chapter outlines seven ideal-typical models for thinking about the politics of police. The models are not mutually exclusive and can be combined to form complex descriptions of theoretical relations. They rest on a variety of conceptual distinctions. Crime control and due process; high and low policing; police force and police service; organizational structure and officer discretion; state, market, and civil society; police knowledge work, investigation and intelligence; and the democratic, authoritarian, and totalitarian politics of policing are all discussed. The police métier is discussed a set of habits and assumptions that envisions only the need to control, deter, and punish. It has evolved around the practices of tracking, surveillance, keeping watch and unending vigilance, and the application of force, up to and including fatal force. The chapter concludes that these seven models for thinking about police and policing facilitate micro-, meso-, and macro-level analysis.
11. Police powers and accountability
Authors: Bowling Benjamin , Reiner Robert , Sheptycki James
Published: August 2019

This chapter focuses on police powers, accountability, and the regulation of police discretion. It begins by considering the legitimation of police legal powers in democratic societies and the problem of police accountability. There is then discussion of policy-making for the police force—priorities in resource allocation, strategy, and style—and the street-level actions of rank-and-file officers. Developments in police powers before and after the landmark Police and Criminal Evidence Act (PACE) 1984, and the principle of fundamental balance between powers and safeguards supposedly enshrined in PACE are covered. The chapter then examines developments in police accountability, including the mechanisms for handling complaints against the police and the role of political control in police governance. It concludes by assessing the attempts to reconcile police power and democratic accountability in contemporary societies characterized by a patchwork of domestic, transnational, public, and private police agencies carrying out ‘high’ and ‘low’ policing.
12. Conclusion: histories of the future
Authors: Bowling Benjamin , Reiner Robert , Sheptycki James
Published: August 2019

The concluding chapter pulls together the implications of the earlier chapters of this book for an assessment of where policing is heading, and what is to be done to achieve greater effectiveness, fairness, and justice. It seeks to answer eight specific questions: What is policing? Who does it? What do police do? What are police powers? What social functions do they achieve? How does policing impact on different groups? By whom are the police themselves policed? How can policing practices be understood? It considers technological, cultural, social, political, economic changes and their implications for crime, order, and policing. It also examines the multifaceted reorientation of police thinking, especially shifts in the theory and practice of policing in the 1990s that included the rhetoric of consumerism. The chapter considers the limits of police reform and the implications of neo-liberalism for the police before concluding with a call for policing based on the principles of social democracy.
6. Criminal capacity, mens rea, and fault
Authors: Horder Jeremy
Published: August 2019

This chapter deals first with another fundamental requirement of a crime: criminal capacity. It is a precondition of criminal liability that the defendant is a person with sufficient capacity to be held responsible. This leads to an examination of infancy and insanity as barriers to criminal responsibility, and then to a consideration of special factors affecting corporate criminal liability. Secondly, this chapter considers fault requirements as an element of criminal offences. It explores some of the reasons for and against the criminal law requiring proof of fault in any form. It also considers principal varieties of fault requirement in the criminal law, such as intention and recklessness.
7. Excusatory defences
Authors: Horder Jeremy
Published: August 2019

This chapter discusses ‘excusatory’ defences. These are defences that are concerned with absence of fault or culpability in a broader sense than is understood by a ‘fault element’ when such an element is included in the definition of an offence. Even when an accused person (say) intended to harm another person, and thus possessed the fault element in the definition of the crime, he or she may still be all but blameless if, for example, what was done was done only because he or she would be killed if the action was not undertaken. In that regard, the chapter covers duress and coercion, reasonable mistake, and ‘putative’ defences. The ‘defence’ of intoxication is also tackled here, even though it is not really an excuse in the sense just explained.
8. Homicide
Authors: Horder Jeremy
Published: August 2019

This chapter discusses homicide offences. It covers in detail murder, defences to murder, and involuntary manslaughter. However, these traditional topics no longer cover the whole ground, as Parliament has created a number of new homicide offences in recent years. Accordingly, attention is paid to causing or allowing the death of a child or vulnerable adult, and causing death by driving. It concludes with a review of the structure of the law of homicide: is the current structure adequate, with murder at the top, and then manslaughter of different kinds beneath that, together with a hotchpotch of specialized homicide offences with varying degrees of gravity?
9. Non-fatal violations of the person
Authors: Horder Jeremy
Published: August 2019

This chapter discusses two main forms of physical violation: the use of physical force, and sexual interference. The first part covers non-fatal physical offences (offences against the person), including the contested question of the limits of consent, and possible reforms of the law. There have been numerous recommendations for reform of this area of the law, including Law Commission proposals in the recent past. The second part is devoted to the law of sexual offences under the Sexual Offences Act 2003, focusing on the main offences and the definition of consent. It concludes with a review of the law’s successes and failures. Arguably, whilst the law’s basic definition of rape is much improved, the 2003 Act falls down in relation to many other problems that it was meant to solve.
2. The banker–customer relationship
Authors: Chiu Iris H-Y , Wilson Joanna
Published: August 2019

This chapter discusses the relationship between a bank and its customer. The Bills of Exchange Act 1882 defines a banker to include ‘a body of persons whether incorporated or not who carry on the business of banking’. Meanwhile, upon the opening of an account, a person will be deemed to have become a customer of the bank and there is no requirement for a habitual course of dealings. Although the relationship between a bank and its customer is primarily governed by contract law, there may be circumstances in which the bank undertakes additional obligations, thereby taking the relationship beyond the remit of contract law such that the bank becomes subject to fiduciary duties of trust and loyalty. The chapter then considers the fiduciary nature of the banker–customer relationship as well as undue influence.
3. Payment methods
Authors: Chiu Iris H-Y , Wilson Joanna
Published: August 2019

This chapter examines payment methods, which refer to the mechanisms, procedures, and organisations that are used to enable parties to discharge their payment obligations. While there are a vast range of different payment mechanisms, the most common methods are cheques, payment cards, and the electronic transfer of funds. A cheque is a written order from an account holder instructing their bank to pay a specified sum of money to one or more named beneficiaries. Meanwhile, payment cards—small pieces of plastic that are used in financial transactions—have revolutionised the way that people pay for goods or services. Lastly, the transfer of funds refers to the movement of a credit balance from one account to another, which occurs by adjusting the balances of the respective party’s accounts. The chapter then looks at recent innovations in the payment services industry relating to open banking and third-party providers.
8. Micro-prudential regulation I
Authors: Chiu Iris H-Y , Wilson Joanna
Published: August 2019

This chapter studies capital adequacy regulation, which prescribes that banks can only take certain levels of risk that are supported by adequate levels of capital. In this way, capital adequacy rules provide a form of assurance that banks with adequate levels of capital are likely able to withstand losses that may result from their risk-taking. The Basel Committee developed its first set of capital adequacy standards in the Basel I Capital Accord of 1988. It was subsequently overhauled into the Basel II Capital Accord in 2003. After the global financial crisis of 2007–9, the Basel II Accord’s shortcomings were extensively discussed and the Basel Committee introduced a package of reforms in order to plug the gaps in Basel II. The Basel III package is the most extensive suite of micro-prudential regulation reforms seen to date, as they deal with capital adequacy and a range of other micro-prudential standards.
11. The regulatory framework for bank culture and conduct
Authors: Chiu Iris H-Y , Wilson Joanna
Published: August 2019

This chapter focuses on the regulatory framework for bank culture and conduct. Bank culture profoundly affects the outcomes that regulators are concerned with: the prudential safety of banks and banksʼ conduct in the marketplace. Such culture is forged by individual decision-making and behaviour at banks, as well as the collective ethos and environment at the organisation. The regulation of individuals comprises of two regimes, a more stringent one for ‘senior managers’ as compared to ‘certified persons’. Senior managers and certified persons are approved according to fitness and propriety criteria, and their approval can be revoked for failing to meet these criteria on a continuing basis. They are also subject to an individual code of conduct and can be personally liable, subject to fines and/or full or partial prohibition from working in the financial sector. The chapter then looks at the development of soft law in banking culture and ethics.
13. Crisis management and resolution
Authors: Chiu Iris H-Y , Wilson Joanna
Published: August 2019

This chapter explores the development of a regulatory regime for crisis management and resolution. The lack of a coherent policy toolkit to deal with bank failures and cross-border bank failure implications in the 2007–9 global financial crisis sets the context for policy reform in bank crisis management and resolution. The regime for bank crisis management and resolution in the UK is found in the Bank Recovery and Resolution Order 2016 and the PRA Rulebook, transposing the European Bank Recovery and Resolution Directive 2014. This regime covers crisis prevention, which refers to advance planning by banks; early intervention by resolution authorities short of resolution; the processes and powers in resolution; safeguards and accountability in resolution; and funding for resolution. The chapter then looks at deposit guarantee schemes as well as cross-border crisis management and resolution.
6. Corporate capacity and liability
Authors: Roach Lee
Published: August 2019

This chapter focuses on the complex rules regarding who can act on behalf of the company, and how liability can be imposed on the company for the actions of others. A company can enter into a contract by affixing its common seal to the contract; by complying with the rules in ss 44(2)–(8) of the Companies Act 2006 (CA 2006); or by a person acting under the company's express or implied authority. Section 39 of the CA 2006 provides that a contract cannot be invalidated on the ground that the contract is outside the scope of the company's capacity. Meanwhile, section 40 of the CA 2006 provides that the power of the directors to bind the company, or authorize others to do so, is free of any limitation under the company's constitution. The chapter then considers the four methods of liability: personal liability; strict liability; vicarious liability; and liability imposed via attribution.
11. Directors’ duties II: conflicts of interest
Authors: Roach Lee
Published: August 2019

This chapter focuses on those duties relating to conflicts of interests, before moving on to look at transactions involving directors that require member approval. Section 175 of the CA 2006 provides that a director must avoid a situation in which he has, or can have, an interest that conflicts with that of the company. Section 176 provides that a director must not accept, from a third party, a benefit conferred by reason of his being a director or by doing anything as a director. Meanwhile, section 177 provides that a director who is interested in a proposed transaction or arrangement with the company must disclose the nature and extent of that interest to the other directors. Member approval is required if a director is interested in a ‘substantial property transaction’ involving the company or if a director is to enter into a loan, quasi-loan, or credit transaction with the company.
13. Membership
Authors: Roach Lee
Published: August 2019

This chapter discusses the concept of membership. Section 112 of the Companies Act 2006 (CA 2006) provides that a person is a member if they have agreed to become a member and their name is entered into the register of members. In relation to a newly created company, the subscribers to the company's memorandum will become members, even if their names are not entered into the register of members. Accordingly, a person's membership is terminated when his name is removed from the register of members. Every company must keep a register of its members, although private companies can elect to keep the required information on the central register maintained by Companies House. In order to help improve the transparency of company ownership, certain companies are required to keep a register of interests disclosed and a register of persons with significant control.
14. Meetings and investor engagement
Authors: Roach Lee
Published: August 2019

This chapter examines the role and importance of general meetings, the significant body of procedural rules by which general meetings are run, and the extent to which a company's members actually engage with general meetings. Members make decisions in one of two ways: through a resolution or by unanimous assent. A resolution is simply a vote that requires a specified majority vote in its favour in order to be passed. The resolutions of public companies must be passed at meetings, whereas resolutions of private companies can be passed at meetings or via a written resolution. Two forms of general meeting existed: the annual general meeting and extraordinary general meetings. In some cases, however, companies are required to hold a class meeting in which only one class of member is entitled to attend. To encourage institutional investors to engage more, the Financial Reporting Council (FRC) has published the UK Stewardship Code.
17. The maintenance of capital
Authors: Roach Lee
Published: August 2019

This chapter addresses what is known as the capital maintenance doctrine — a series of rules designed to protect the company's creditors by ensuring that capital is maintained and not returned to the company's members. Any limited company can reduce its share capital by passing a special resolution followed by court confirmation. A private company can reduce its share capital by passing a special resolution supported by a solvency statement. On the other hand, public companies are generally prohibited from providing financial assistance to others to acquire their shares. Meanwhile, a company can generally only pay a dividend out of distributable profits. The typical three-stage process for paying dividends is the directors recommend an amount to be distributed by way of dividend; the company declares the dividend by passing an ordinary resolution; and the dividend is paid out.
The Law of Trusts
Authors: Penner JE
Published: August 2019

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. The Law of Trusts provides perceptive analysis and original and thought-provoking commentary to give students a grounding in what is considered to be a difficult subject. The book introduces the controversies surrounding the topic in a thought-provoking way, engaging the reader and giving an all-round picture of the key issues relating to the subject. New to this edition, Chapters 3, 5, 11, and 13 (Chapter 12 in the previous edition) have all been significantly revised to reflect recent developments in the law and the academic commentary on, respectively, beneficiaries’ standing to sue and rights to information, resulting trusts, breach of trust, and the law governing fiduciaries. Chapter 12 ‘Restitution, unjust enrichment, and the law of trusts’ is new; it brings together material previously found in other chapters, organising it in a more coherent way for the better appreciation of the student reader, whilst also containing a wholly new discussion of the leading cases and academic commentary in this area of law.
2. The nature of the express trust
Authors: Penner JE
Published: August 2019

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses the following concepts: the express trust and trusts arising by operation of law; the way in which beneficiaries of trust receive the benefits of the trust assets; beneficial, legal, and equitable interests in property; trustees and fiduciaries; the personal and proprietary nature of the trust; bare trusts, special trusts, and nomineeships; the nature of the beneficiary’s right; the bona fide purchaser; property and obligations; a note on trusts for civil lawyers; the civil law trusts in Quebec and Scotland; the context of insolvency, and testamentary gifts.
3. Express trusts: trusts and powers
Authors: Penner JE
Published: August 2019

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter considers express trusts, which are flexible devices for structuring the benefits that property can provide, particularly in ways that are impossible or inconvenient to do simply by making an outright gift. The discussions cover fixed trusts, discretionary trusts, and powers of appointment; duties and powers virtute officii (powers given to office holders), personal powers (powers nominatum), powers ‘in the nature of a trust’, fiduciary powers, bare and mere powers; interests under fixed trust; the principle in Saunders v Vautier; trusts void on grounds of public policy and illegal trusts the rule against perpetuities; the enforcement and judicial control of discretionary trusts and powers of appointment; excessive and fraudulent exercises of powers; interests under discretionary trusts and powers of appointment; locus standi to enforce the trust and beneficiaries’ rights to information, and protective trusts.
5. Resulting trusts
Authors: Penner JE
Published: August 2019

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter considers resulting trusts. It first discusses the two basic kinds of resulting trusts: ‘automatic’ resulting trusts (ARTs) and presumed resulting trusts (PRTs). PRTs fall into two categories: voluntary transfer PRTs and purchase contribution PRTs. Both the PRT and the ART are bare trusts, so the legal title holder has essentially only one duty: to hold the property for the resulting beneficiary (or his successors). This is obvious in the case of the ART. In the case of the PRT this is so because the presumption only goes so far as to presume the location of the beneficial interest—no further trust terms are presumed. Any further terms of an intentional trust must be proved without the benefit of the presumption.
11. Breach of trust
Authors: Penner JE
Published: August 2019

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses cases involving breach of trust. It first deals with the trustee’s personal liability for breach of trust. A trustee can breach the trust in two basic ways. First, by misapplying the trust property, eg the trustee gives the property away to someone who is not a proper object of the trust. Secondly, the trustee can breach his duty to act with care and skill in the administration of the trust causing the trust loss. Next, it considers the case where a third party dishonestly assists in the breach of trust. This is followed by a discussion of the proprietary claims that the beneficiaries can make against the trustee and strangers to the trust who receive trust property.
14. Charitable trusts
Authors: Penner JE
Published: August 2019

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter focuses on charitable trusts. Charitable trusts are not subject to the beneficiary principle. These are valid purpose trusts that are enforced, not by beneficiaries, but by the Attorney-General or, more recently, by the Charity Commission. Charities are generally exempt from most taxes. The conditions for charitable status; the charitable character of public purpose trusts; trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; trusts for other purposes beneficial to the community; the law concerning the public benefit requirement; and the application of the cy-près doctrine to save charitable trusts from failure are discussed.
Criminology Skills
Authors: Finch Emily , Fafinski Stefan
Published: August 2019

Criminology Skills covers both study skills and research skills in one manageable volume. The text is designed to enable you to develop an integrated understanding of the key skills required to succeed in your study of criminology. A three-part structure introduces you to the skills of finding source materials and takes you through the academic skills you will need to succeed in your degree, before finishing with a section on research methods and writing dissertations and research reports. The book provides an ideal introduction to the key study and research skills that you will need to demonstrate during your study and practice of criminology. Criminology Skills first helps you establish a strong skills foundation before incrementally building to a more advanced level increasing the competence, and confidence, with which you will be able to approach projects that require strong academic and research skills. After an introduction to the study of criminology, the book covers: books and journals; statistics and official publications; media and web sources; criminal law; study skills; writing skills; referencing and avoiding plagiarism; essay writing; presentations; revision and examinations; research ethics; gathering data; quantitative analysis; qualitative analysis; and dissertations and research reports. It is accompanied by online resources.
1. What is criminology?
Authors: Finch Emily , Fafinski Stefan
Published: August 2019

This introductory chapter attempts to answer the question ‘what is criminology?’ by exploring the origin of criminology as a discipline together with an overview of some of the types of question that may be of interest to criminologists. It sets out the structure of the remainder of the book, the first part of which introduces the source material that is commonly used in the study of criminology. The second part focuses on academic skills, while the final part concentrates on research methods.
8. Referencing and avoiding plagiarism
Authors: Finch Emily , Fafinski Stefan
Published: August 2019

This chapter focuses on referencing and avoiding plagiarism. It explains the meaning of plagiarism in detail and introduces the Harvard style of referencing. It explains when references must be provided in order to avoid inadvertent plagiarism. The chapter discusses referencing printed materials, government publications, legal sources, audio-visual sources, and electronic sources consistently and thoroughly using Harvard (name-date) referencing.
Learning Legal Rules
Authors: Holland James , Webb Julian
Published: August 2019

Learning Legal Rules brings together the theory, structure, and practice of legal reasoning in order to help the reader to develop both their knowledge and reasoning skills. It provides techniques of legal research, analysis, and argument, and explains the operation of precedent as well as effective statutory interpretation. When studying law, it is easy to become focused on the substantive aspects of the subject—the concepts, rules, and principles that go to make up contract, tort, crime, etc. In order to study and practise law effectively, it is essential not only to understand what the legal rules are, but also why they are as they are, and what consequences they might have. This requires that you develop the abilities that are the core focus of this book: to find and make sense of the primary and secondary sources of law; to interpret and apply authorities; to construct arguments both about the facts of a case, and as to how and why a particular authority should or should not be applied in a given situation, and to write clearly, and in an appropriate legal style, making reference to authority as necessary, in the proper academic form.
1. Introduction to equity and trusts
Authors: Watt Gary
Published: August 2019

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. Expressly created trusts are a special form of gift that do not require any formality. However, formality is extremely important with regard to the subsequent transfer of beneficial interests after the creation of a trust and with regard to trusts made by will (so-called testamentary trusts). Not everybody has the capacity to create a binding trust; where there is no capacity it is mainly due to poor mental health or minority (infancy). This chapter deals with capacity and formality requirements in relation to the creation of trusts and considers inter vivos transactions, the relevant provisions of the Law of Property Act 1925, lack of formality as a defence to disguise a fraud and testamentary trusts. It also examines whether a would-be settlor is legally capable of setting up a trust and discusses the equitable interest under a trust in compliance with the proper formalities, trusts for which there are no formality requirements and valid ‘mutual wills’ and ‘secret trusts’.
3. Capacity and formality requirements
Authors: Watt Gary
Published: August 2019

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. Expressly created trusts are a special form of gift that do not require any formality. However, formality is extremely important with regard to the subsequent transfer of beneficial interests after the creation of a trust and with regard to trusts made by will (so-called testamentary trusts). Not everybody has the capacity to create a binding trust; where there is no capacity it is mainly due to poor mental health or minority (infancy). This chapter deals with capacity and formality requirements in relation to the creation of trusts and considers inter vivos transactions, the relevant provisions of the Law of Property Act 1925, lack of formality as a defence to disguise a fraud and testamentary trusts. It also examines whether a would-be settlor is legally capable of setting up a trust and discusses the equitable interest under a trust in compliance with the proper formalities, trusts for which there are no formality requirements and valid ‘mutual wills’ and ‘secret trusts’.
4. Certainty requirements
Authors: Watt Gary
Published: August 2019

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. Three certainties must be satisfied for the creation of an express trust to protect the trustees and also for the benefit of the court: certainty of intention (a certain intention to create a trust), certainty of subject (certainty with regard to the assets subject to the trust and the shares in which it is to be held by the beneficiaries) and certainty of object (certainty with regard to beneficiaries or purposes of the trust). This chapter deals with the certainty requirements in relation to the creation of trusts, the distinction between conceptual and evidential uncertainty, the consequences where a trust fails for lack of certainty and how a settlor can draw up a trust with sufficient certainty. It also examines the construction of a trust, creation of express trusts in commercial contexts, fixed trusts, the class ascertainability test, discretionary trusts and gifts subject to conditions.
10. Trustee appointments
Authors: Watt Gary
Published: August 2019

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. No more than four trustees can be appointed in a private trust of land. The trustees will hold the legal title as joint tenants; if any of them dies, the legal title remains vested in the surviving trustees by ‘right of survivorship’. This chapter examines trustee appointments, focusing on cases where a trustee dies or for some other reason ceases to act, and also considers the persons able to appoint trustees and the persons able to act as trustees. The chapter provides an overview of the Trustee Act 1925, and the Trusts of Land and Appointment of Trustees Act 1996. It also considers the principle that a trust does not fail for want of a trustee, how a trustee may disclaim the trust and the modes by which a trustee might retire, or be removed, from the trust. In addition, the chapter looks at the actions of the trustee upon appointment, liability after retirement from the trust, removal under ss 36(1) and 41 of the Trustee Act 1925 and removal of the trustee under the court’s inherent jurisdiction.
13. Maintenance and advancement
Authors: Watt Gary
Published: August 2019

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. Under the Trustee Act 1925, trustees have the power to make payments out of the trust income for the maintenance of infant beneficiaries, as well as the power to make payments out of trust capital for the advancement and benefit of both infant and adult beneficiaries. However, the express terms of the trust instrument can exclude or modify these provisions. This chapter deals with maintenance and advancement of trust beneficiaries. It examines the extent of the statutory powers of maintenance and advancement, how the statutory powers are excluded or modified by the express terms of the settlement and a valid exercise of the powers of maintenance and advancement. The chapter also considers maintenance with respect to gifts carrying intermediate income, class gifts, tax considerations, perpetuities, and maintenance out of capital money, along with the meaning of ‘benefit’, exercise of discretion to make an advancement and contrary intention in the trust instrument.
14. Investment
Authors: Watt Gary
Published: August 2019

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. Part II of the Trustee Act 2000 gives every trustee the power to make any kind of investment as long as he is absolutely entitled to the assets of the trust, a power that permits trustees to hold investments jointly or in common with other persons. There are no unauthorised types of investment, but it is important to know whether the type of investment chosen was appropriate to the trust on the basis of the ‘standard investment criteria’. This chapter examines the types of investment permitted by the general law, a breach of the duty to invest with appropriate care, the significance of modern portfolio theory to trustee investments and the impact of the Trustee Act 2000 upon trustee investments. It also looks at the historical need for income production and discusses capital gains as investment returns, the standard investment criteria, the need for trustees to obtain and consider proper advice about investments, particular types of investment and investment policy.
17. Informal trusts of land
Authors: Watt Gary
Published: August 2019

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. The trust law that applies to family land might not be applicable to other types of land. Resulting trusts present a particular challenge in this regard. Although the doctrines of resulting trust have long been settled in the law of trusts, they have recently been questioned in the context of the family home. This chapter focuses on informal trusts of land and the social reasons why they are recognised, first looking at the problem of informality before turning to the different kinds of informal trusts of land. It also examines whether facts give rise to a resulting trust or a constructive trust, the practical significance of the distinction between constructive and resulting trusts of land, the relationship between proprietary estoppel and constructive trust, express agreement plus detrimental reliance, and the decision of the House of Lords in Stack v Dowden. The chapter concludes by considering some of the problems addressed by, and caused by, the operation of informal trusts in the context of cohabitation.
18. Tracing
Authors: Watt Gary
Published: August 2019

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. Trustees have personal liability in an action for compensation or account. If the action proves worthless in practice because the trustees are impecunious or have been declared bankrupt, and hence cannot repay trust monies to the fund, the beneficiaries may be able to trace the value of their trust property into bank accounts and into assets that have been bought with the trust property. It is the value of the trust property, not the precise item of the property itself, which is sought or traced in most cases. Tracing is a process that gives rise to the ultimate remedy of recovering misapplied money or property. This chapter examines tracing and the limits to common law tracing, the distinction between proprietary remedies and personal remedies, and how the rules for tracing in equity may be applied to unmixed funds, mixed funds and assets purchased with such funds. It also discusses the artificiality of the distinction between common law and equitable tracing rules, defences to the common law restitutionary claim and advantages of proprietary rights.
1. The world of bits
Authors: Murray Andrew
Published: August 2019

The question ‘what can we control?’ underpins both the information society and the knowledge economy, and represents the maturity of information technology. Most importantly, it signals a transition from a world that saw economic value in terms of atoms to a world which values information in bits. This chapter examines this transition and the role of bits in the information society. It first provides an overview of bits and their place in the digitization process. The chapter then looks at the advent of digital music and other digital goods such as digital video and electronic books. It also considers the shift from rivalrous goods to nonrivalrous goods before concluding with a discussion of the legal challenge of the information society.
12. Copyright infringement in the digital environment
Authors: Murray Andrew
Published: August 2019

This chapter analyses cases of copyright infringement in the online environment. It begins by analysing some early cases regarding file-sharing technologies, including A&M Records, Inc. v Napster, Inc., MGM Studios, Inc. v Grokster, Ltd, and Sweden v Neij et al. (the Pirate Bay case). It assesses new techniques for fighting illegal file-sharing, such as blocking access to websites offering file-sharing technology or indexes with a focus on the operation of s. 97A website blocking orders. It examines the recent Supreme Court decision in Cartier International v British Sky Broadcasting which will have substantial implications for costs in these orders. Finally, it describes the slightly controversial process known as speculative invoicing.
21. Crime and law enforcement in the information society
Authors: Murray Andrew
Published: August 2019

This chapter examines cybercrimes, cyberattacks such as denial-of-service attacks, and law enforcement in the information society. It looks at advance fee fraud, internationally known as ‘419 Fraud’ with reference to Nigeria; as well as the ‘Russian Scam’ that targets the users of online dating sites. It also examines other criminal activities common on the internet, such as privacy attacks, including phishing which illegally appropriates personal data; harassment; cyberstalking; and grooming, and also considers identity theft and identity fraud, as well as cyberterrorism. The chapter presents case studies dealing with cybercrimes, and, finally, it discusses the efforts of the Council of Europe Convention on Cybercrime to harmonize international cybercrime laws.
23. Data protection: rights and obligations
Authors: Murray Andrew
Published: August 2019

This chapter examines the rights of data subjects under GDPR and the role of the state in supervising data controllers. It examines data subject rights, including the subject access right and the right to correct and manage personal data. It deals with the development of the so-called Right to be Forgotten and the Mario Costeja González case. It examines the current supervisory regime, including the role of the Information Commissioner’s Office and the enforcement rights of data subjects. Key cases, including Durant v The Financial Services Authority, Edem v IC & Financial Services Authority, Dawson-Damer v Taylor Wessing, and Ittihadieh v 5–11 Cheyne Gardens are discussed, and the chapter concludes by examining the enhanced enforcement rights awarded to the Information Commissioner’s Office by the General Data Protection Regulation in 2018.
6. Parliament: The Best of Times, the Worst of Times?
Authors: Norton Philip
Published: August 2019

Parliament fulfils functions that are long-standing, but its relationship to government has changed over time. It has been criticized for weakness in scrutinizing legislation, holding government to account, and voicing the concerns of the people. Despite changes in both Houses in the twentieth century, the criticisms have persisted and in some areas Parliament has seen a constriction in its scope for decision-making. The twenty-first century has seen significant steps that have strengthened both Houses in carrying out their functions, the House of Commons in particular acquiring new powers. Members of both Houses have proved willing to challenge government. It remains a policy-influencing legislature, but a stronger one than in the preceding century. While strengthening its position in relation to the executive, it has faced major challenges in its relationship to the public. It has seen a greater openness in contact with citizens, but has had to contend with popular dissatisfaction and declining levels of trust.
7. The Executive in Public Law
Authors: Poole Thomas
Published: August 2019

This chapter focuses on the executive, the branch of government responsible for initiating and implementing the laws and for acting where necessary to secure the interests of the state. We trace its development out of a medieval model of government structured around the king and his court, to a modern world of offices exercising executive functions, grouped under the legacy term ‘the Crown’. The resulting institutions display a complicated pattern of law and custom, and legal concepts and principles relate to them often in convoluted ways. Our analysis focuses on how executive power is normally understood from the legal point of view—deriving from an authorizing statute via rules made within a government department to eventual application by subordinate officials or agents—and traces some of the ways the courts monitor that process. But we also examine the executive’s non-statutory or ‘prerogative’ powers, the two main compartments of which are treated separately, as the general executive powers and the general administrative powers of the Crown respectively.