bluuebunny/crossref_metadata_2025 huggingface dataset:
2. Proceedings Before the Court
Authors: Rainey Bernadette , McCormick Pamela , Ovey Clare
Published: September 2021

This chapter examines the proceedings at the Strasbourg Court of the European Court of Human Rights. It explains that the Court’s principal role is to pronounce on applications under the European Convention on Human Rights (ECHR) and that its judgments are legally binding on respondent States and declaratory in nature. The chapter describes the composition and general procedure of the Court, and discusses the admissibility criteria. It outlines the ongoing reform of the institutions of the Court and measures taken to increase the efficiency of the Court and improve the relationship between the States and the Court.
3. Supervising the Enforcement of Judgments
Authors: Rainey Bernadette , McCormick Pamela , Ovey Clare
Published: September 2021

This chapter examines the role of the Council of Europe’s Committee of Ministers in supervising the judgments made by the European Court of Human Rights or the Strasbourg Court, describes the composition and procedure of the Committee of Ministers, and the execution of judgments.
4. Interpreting the Convention
Authors: Rainey Bernadette , McCormick Pamela , Ovey Clare
Published: September 2021

This chapter analyses the interpretation of the European Convention on Human Rights (ECHR). It explains that there are two key themes which have dominated the interpretation of the Convention: the purposive and the evolutive interpretations. The chapter describes the approach of the Strasbourg Court to the interpretation of the ECHR and evaluates the influence of the Vienna Convention. It suggests that the interpretation of the Convention builds on the rules of public international law on the interpretation of treaties and has remained broadly consistent with those principles, and that the role of the Strasbourg Court is casuistic.
10. Protection from Slavery and Forced Labour
Authors: Rainey Bernadette , McCormick Pamela , Ovey Clare
Published: September 2021

This chapter, which examines the provisions of the European Convention on Human Rights against slavery and forced labour, discusses the provisions of Article 4 and the judgments made by the Strasbourg Court in cases such as human trafficking. It considers the developments concerning human trafficking in cases such as Rantsev, which expanded on the positive obligations placed on the State. The chapter examines how the Court has developed the interpretation of slavery in light of international Conventions on human trafficking and the relationship between human trafficking and forced labour. The chapter also examines the interpretation of forced labour, including in relation to employment, prisoners, and military service.
13. Aspects of the Criminal Process
Authors: Rainey Bernadette , McCormick Pamela , Ovey Clare
Published: September 2021

This chapter, which examines the provisions of the European Convention on Human Rights on fair trial specific to criminal proceedings found in paragraphs (2) and (3) of Article 6, explains the scope of Article 6(2) and (3), and discusses the principle of legality and the judgments made by the Strasbourg Court in several related cases. It also considers the rule against retrospective legislation in Article 7 of the Convention and a number of additional rights connected with the criminal process introduced by Articles 2 to 4 of Protocol 7. The Court considers the relationship between the Court and domestic jurisdictions in relation to Article 6, Article 7, and Articles 2 to 4 of Protocol 7.
16. Protecting Private Life, the Home, and Correspondence
Authors: Rainey Bernadette , McCormick Pamela , Ovey Clare
Published: September 2021

This chapter examines Article 8 of the European Convention on Human Rights (ECHR) and its protection of private life, the home, and correspondence; analyses the scope of the protection of private life under the ECHR; and provides the Convention definition of private life, home, and correspondence. It also discusses the judgments given by the Strasbourg Court in several relevant cases, including those involving freedom from interference with physical and psychological integrity, freedom to develop one’s identity, issues of health and sexuality, reproductive rights, State surveillance and data collection, the monitoring of employees in the workplace, protection of one’s living environment, and protection of prisoners’ correspondence.
17. Freedom of Thought, Conscience, and Religion
Authors: Rainey Bernadette , McCormick Pamela , Ovey Clare
Published: September 2021

This chapter examines the protection of the freedom of thought, conscience, and religion in the European Convention on Human Rights. It explains the provisions of Article 9 and the definition that has been given to the concepts of ‘religion’, ‘belief’, and the ‘manifestation of religion or belief’. It analyses the decisions made by the Strasbourg Court in several related cases, including those involving proselytism, the wearing of religious dress and symbols, the manifestation of religion and belief by prisoners, the conscientious objection to military service, immigration issues which touch on the freedom of religion, and the recognition and authorisation of religious organisations.
19. Freedom of Assembly and Association
Authors: Rainey Bernadette , McCormick Pamela , Ovey Clare
Published: September 2021

This chapter examines the provisions for freedom of assembly and association in the European Convention on Human Rights, and discusses the provisions of Article 11, which covers the protection of political parties, other associations, and a bundle of trade union rights. It explains that the case-law under Article 11 can be divided into two categories: the first is concerned with political or democratic rights; and the second relates to the employment-based rights to join, or refuse to join, a trade union. It examines developments concerning the right to protest and trade union rights such as collective bargaining.
20. Protection of Property
Authors: Rainey Bernadette , McCormick Pamela , Ovey Clare
Published: September 2021

This chapter examines protection of the right to property in the European Convention on Human Rights (ECHR). It discusses the provisions of Article 1 of Protocol 1 and explains that all the provisions of the Convention, including Articles 13 to 18, apply equally to the rights guaranteed by the First Protocol. The chapter also suggests that the Strasbourg Court has come to approach the protection of property rights using much the same methodology as it adopts in relation to complaints of violations of the rights protected by Articles 8 to 11. It examines the application of the right to property to issues such as rent control and restitution, especially focusing on cases arising from the transition of post-Soviet States to democracy, and cases arising from armed conflict.
21. The Right to Education
Authors: Rainey Bernadette , McCormick Pamela , Ovey Clare
Published: September 2021

This chapter examines the protection of the right to education in the European Convention on Human Rights (ECHR), discusses the provisions of Article 2 of the Protocol 1, and highlights the Strasbourg Court’s recognition of the connection of the right to education with the rights protected by Articles 8 to 10 of the Convention. It examines the developments concerning parents’ philosophical convictions and issues concerning religious symbols in the classroom. The chapter examines the use of the margin of appreciation doctrine and proportionality by the Court in order to balance different beliefs in an educational setting within a multicultural society.
25. Results and Prospects
Authors: Rainey Bernadette , McCormick Pamela , Ovey Clare
Published: September 2021

This chapter sums up the key findings of this study on the Convention on Human Rights (ECHR). It suggests that the principal achievement of the Convention has been the establishment of a formal system of legal protection available to individuals covering a range of civil and political rights which has become the European standard. The chapter highlights the measures taken by the Court to decrease its caseload and increase its efficiency in dealing with applications. It also highlights the contemporary challenges facing the Court, including the relationship between States and the Court, the challenge of the rise of authoritarian governments, and the threats to rights protection from the climate crisis.
9. Entry for work, business, and study: the points-based system
Authors: Clayton Gina , Firth Georgina , Sawyer Caroline , Moffatt Rowena
Published: September 2021

This chapter deals with the law relating to entry for work, self-employment, and study. These are the areas covered by the points-based system (PBS), which was implemented from 2008. It is organised around the five tiers of the PBS but makes reference to some of the old rules as well as provides some historical perspective. It also considers those few schemes remaining outside the PBS and, briefly, illegal working. A new PBS has been announced, to come into operation at the end of the Brexit transition period on 31 December 2020. The government’s intention is to end the ‘distortion’ of free movement and to treat EU and non-EU migrants ‘equally’, reducing overall migration and encouraging only skilled migrants.
16. Removal
Authors: Clayton Gina , Firth Georgina , Sawyer Caroline , Moffatt Rowena
Published: September 2021

This chapter describes the development of the grounds in law for exercising the power to remove a person from the UK, from Immigration Act 1971 to Immigration Act 2014. These include people who have overstayed the limit of their leave or have breached conditions of leave or obtained leave to remain by deception, and the families of such people. The Immigration Act 2014 s 1 abolished the historic distinction between overstayers and illegal entrants and replaced a number of separate powers with a single power to remove a person who requires leave to enter or remain in the UK but does not have it. The chapter also examines the practical obstacles to removal. These are often as important to the individual as the legal ones.
Smith, Hogan, and Ormerod's Criminal Law
Authors: Ormerod CBE, QC (Hon) David , Laird Karl
Published: September 2021

This book, in its 16th edition, has been completely updated to include all legislative and case law developments and detailed analysis of the many recent developments since the last edition. The material on dishonesty has been rewritten to take account of developments following the Supreme Court’s decision in Ivey v Genting Casinos. The book begins with an introduction of definitions of crime and an explanation of the sources of criminal law followed by detailed analysis of the elements of a crime (actus reus and mens rea) including negligence and strict liability. Secondary liability is examined with an emphasis on analysing the Supreme Court’s judgment in Jogee, before exploring corporate and vicarious liability. Mental condition defences and the Law Commission’s proposals to reform them are examined alongside issues relating to mistake and intoxication. A comprehensive review of general defences includes the Court of Appeal’s controversial approach to self-defence in householder cases. The final chapter of the general part provides a detailed review of inchoate offences. The second part of the book examines specific offences including murder, manslaughter, other homicide offences, non-fatal offences, sexual offences, theft and robbery, and considers the Fraud Act 2006, burglary, offences of damages to property, offences against public order and road traffic offences.
1. An introduction to the criminal law
Authors: Ormerod David , Laird Karl
Published: September 2021

It is neither easy to define crime nor identify the aims of criminal law but some characteristics may be universal to every crime, including that it involves public wrongs and moral wrongs. ‘Public wrongs’ reflect the important role of the public in punishing crimes. A crime incorporating a moral wrong implies that a ‘wrong’ is done or harm to others is involved but experience suggests that morality and criminal law are not coextensive. The chapter introduces students to thinking about criminalization and the need to guard against overcriminalization. It also examines the principal sources of criminal law: common law, statute, EU law, international law and the European Convention on Human Rights (ECHR). Problematically, important and serious offences and most defences in English law derive from common law rather than statute, and some offences—from public nuisance to gross negligence manslaughter—have been challenged recently on grounds of certainty and retrospectivity.
2. The elements of a crime: actus reus
Authors: Ormerod David , Laird Karl
Published: September 2021

The chapter begins the exploration of the elements of criminal offences. Two factors are crucial: the event, behaviour or state of affairs known as the external element or actus reus, and the state of mind known as the mental element or mens rea. This chapter discusses the principle of actus reus, proof and the elements of the offence, how to identify elements of actus reus and mens rea, coincidence of actus reus and mens rea, the effect of penalty provisions in determining the elements of the actus reus, actus reus and justification or excuse, the problematic case of Dadson with regard to actus reus, physical involuntariness, a ‘state of affairs’ as an actus reus, general liability for omissions, offences of mere omission, causation, the ‘but for’ principle, the connection between fault and result and negligible causes.
9. Mental conditions, intoxication and mistake
Authors: Ormerod David , Laird Karl
Published: September 2021

This chapter considers the most commonly occurring ‘mental condition defences’, focusing on the pleas of insanity, intoxication and mistake. The common law historically made a distinction between justification and excuse, at least in relation to homicide. It is said that justification relates to the rightness of the act but to excuse as to the circumstances of the individual actor. The chapter examines the relationship between mental condition defences, insanity and unfitness to be tried, and explains the Law Commission’s most recent recommendations for reforming unfitness and other mental condition defences. It explores the test of insanity, disease of the mind (insanity) versus external factor (sane automatism), insane delusions and insanity, burden of proof, function of the jury, self-induced automatism, intoxication as a denial of criminal responsibility, voluntary and involuntary intoxication, dangerous or non-dangerous drugs in basic intent crime and intoxication induced with the intention of committing crime.
13. Voluntary manslaughter
Authors: Ormerod David , Laird Karl
Published: September 2021

Manslaughter is defined by common law as any unlawful homicide that is not murder. The offence is limited by murder at one extreme and accidental killing at the other. Manslaughter can be either ‘voluntary’ or ‘involuntary’. This chapter deals with voluntary manslaughter: this occurs when someone had the intention to kill or do grievous bodily harm, but relies on a partial defence to murder. The two partial defences considered in this chapter are loss of self- control and diminished responsibility (suicide pact is dealt with in Ch 15). This chapter scrutinizes the defences available to the accused and in particular the developing case law under the Coroners and Justice Act 2009 on loss of control and diminished responsibility, including the Supreme Court’s decision in Golds and the series of Court of Appeal cases since that decision.
19. Robbery
Authors: Ormerod David , Laird Karl
Published: September 2021

Robbery is an aggravated form of theft and is considered an extremely serious offence that carries a maximum life sentence and in practice attracts substantial sentences. It was put on a statutory footing in s 8 of the Theft Act 1968 and is triable only on indictment. The offence is very broad, applying to thefts in many circumstances ranging from the work of sophisticated gangs and armed bank robbers to extreme forms of playground bullying. This chapter examines robbery and the requirement of theft coupled with the use or threat of force in committing theft, and the mens rea of robbery.
28. Computer misuse (additional chapter)
Authors: Ormerod David , Laird Karl
Published: September 2021

The impact of computer technology on society has been profound and this chapter examines the offences in the Computer Misuse Act 1990 as amended in the Police and Justice Act 2006 and in the Serious Crime Act 2015. The focus is on offences related to computer misuse, including unauthorized access to computer material, unauthorized access with intent to commit or facilitate further offences, unauthorized acts with intent to impair or recklessness as to impairment of a computer, impairing a computer such as to cause serious damage and making, supplying or obtaining articles for use in such offences.
31. Offences against public order (additional chapter)
Authors: Ormerod David , Laird Karl
Published: September 2021

The Public Order Act 1986 is the principal source of public order offences. These are riot, violent disorder and affray, along with inducing fear of violence and behaviour likely to cause harassment, alarm or distress. Some of the offences in the 1986 Act may be committed in private, but their public order foundations are paramount and these offences should not be treated as merely additional offences against the person. This chapter deals with offences against public order. It also considers harassment, alarm or distress, racially aggravated public order offences and acts intended or likely to incite racial or religious hatred and hatred on the grounds of sexual orientation. The chapter concludes by looking at public nuisance and vicarious liability.
5. The criminal justice system
Authors: Partington Martin
Published: September 2021

This chapter focuses on the criminal justice system. It contains summaries of the different social theories that underpin both the criminal justice system and the fundamental principles relating to sentencing policy. The system is examined in three segments: pre-trial stages, trial stage, and post-trial stages. Each is discussed in turn. This chapter emphasizes the holistic approach by looking not only at what happens in courts, but also the police station and in post-trial contexts such as parole and criminal cases review. The place of the victim in the system is also considered. Attention is given to the need to improve the criminal justice system.
6. The administrative justice system
Authors: Partington Martin
Published: September 2021

This chapter focuses on administrative justice. It reflects on the nature of administrative law and the role it plays in modern society, overseeing the relationship between the citizen and the state. Once again adopting the holisitic approach, the chapter discusses not only the role of the courts, but also the tribunals, ombudsmen, and other bodies and processes that together make up the institutional framework of administrative justice. It notes some of the key changes being introduced as a result of the Transformation Programme and the response to the COVID-19 pandemic. It also considers the particular responsibilities of Members of Parliament in holding the Government to account. In addition, it asks who has general oversight of the system and whether current oversight arrangements are adequate.
8. The civil and commercial justice systems
Authors: Partington Martin
Published: September 2021

This chapter discusses the civil and commercial justice systems. It considers the purpose of the civil justice system and also covers the use of alternative dispute resolution and the incentives to keep disputes out of the court. It looks at the court structure, the county court, the High Court, the newly created Business and Property Courts of England and Wales, and other courts and offices. It considers possible changes that may result from the Transformation programme and the civil and commercial justice systems’ response to the COVID-19 pandemic. It also considers routes of appeal and the work of the appeal courts.
10. Access to justice: paying for legal services
Authors: Partington Martin
Published: September 2021

This chapter focuses on how legal services, in particular litigation, to the less well off and the poor are paid for. It considers first the radically changed shape of the legal aid scheme and publicly funded legal services in recent years and then discusses the developments designed to control the costs of litigation. It summarizes new ideas for the funding of litigation and improving access to justice. It considers the contribution of the legal profession and approaches to re-engineering the system, finally asking whether new processes—alternatives to the courts—might be better at providing cost effective and proportionate dispute resolution services.
11. Transformation or transition? The English legal system in flux
Authors: Partington Martin
Published: September 2021

The final chapter of this book reflects further on how the legal system has changed and will continue to develop going forwards. The dramatic changes that have been made over the past 20+ years are grouped under two broad headings: modernization and austerity. Looking to the future, the immediate challenge is to finish the Transformation Programme and to deal with the impact of the COVID-19 pandemic. Other issues include: dealing with the criminal justice system; increasing support for legal advice services; and improving public legal education. The chapter argues that lawyers should not fear change, but exploit the opportunities that arise.
8. Parliamentary Supremacy and Membership of the European Union
Authors: Webley Lisa , Samuels Harriet
Published: September 2021

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter provides an overview of the relationship between the European Union (EU) and the UK and the impact of this relationship on Parliament’s legislative supremacy. It begins by considering the nature of the EU and the sources of EU law. It then examines how EU membership affected the UK legal order during the UK’s membership and its implications for parliamentary supremacy. It considers the impact of Brexit and the UK–EU Trade and Co-operation Agreement on the UK’s constitutional framework.
9. Parliamentary Supremacy and Human Rights
Authors: Webley Lisa , Samuels Harriet
Published: September 2021

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter examines the legislative supremacy of the UK Parliament and its impact on human rights protection (and vice versa), discussing the history of the European Convention on Human Rights (ECHR) in a UK context and the ECHR’s legal standing. It considers the Human Rights Act 1998 (HRA 1998) and its operation in the UK. The chapter addresses how the ECHR and the HRA 1998 affect parliamentary supremacy and how the human rights context differs from the former EU context as regards parliamentary supremacy. Finally, it analyses whether parliamentary supremacy provides adequate protection of human rights.
11. Executive Power and Accountability
Authors: Webley Lisa , Samuels Harriet
Published: September 2021

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter examines the nature and extent of the power that the executive uses to run the country and begins by defining executive power, and by explaining where it is derived and who may exercise it. It then discusses the mechanisms by which an executive can be called to account for its exercise of power; the extent to which Parliament may hold the government accountable; and the extent that courts may hold the government accountable.
19. Remedies
Authors: Webley Lisa , Samuels Harriet
Published: September 2021

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the remedies granted by the court. If a claimant successfully establishes that the public authority has acted in contravention of one of the grounds of review, then the court may grant a remedy. The purpose of a remedy is to tell the public authority what it has to do to comply with the judgment and to ensure, as far as possible, that it obeys the courts’ decision. There are two main types of remedies available in judicial review cases: ordinary remedies (injunction, declaration, and damages) and prerogative remedies (quashing order, prohibiting order, and mandatory order). The chapter also discusses situations that may cause the court to refuse a remedy and the courts’ powers to grant a remedy under the Human Rights Act 1998 (HRA 1998), including a declaration of incompatibility in accordance with section 4 HRA 1998.
20. Judicial Review: Putting It All Together in Problem Answers
Authors: Webley Lisa , Samuels Harriet
Published: September 2021

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter ties together the loose strands of judicial review to provide a checklist of issues that must be considered in order to diagnose a judicial review problem and to provide a legal opinion for clients. The following questions are addressed: What are judicial review problem questions designed to test? How does one approach a judicial review problem question? How does one approach whether the body may be judicially reviewed? How does one approach whether the client has standing or may intervene in an action? How does one approach whether the other preconditions are met? How does one approach the grounds for review? How does one deal with issues of remedy? How does one provide a final assessment to the client?
6. Identity of offeror and offeree
Authors: Davies Paul S.
Published: September 2021

This chapter considers situations where one party (A) makes an offer to another party (B) but a third party (C) purports to accept the offer made by A. If A makes an offer to B and B alone, that offer cannot be accepted by C. Whether an offer is restricted to B alone is a question of interpretation. If A makes a mistake as to the other party’s identity, no contract will be formed (or, as it is sometimes said, the contract will be void). If A makes a mistake as to the other party’s attributes (such as their creditworthiness) then a contract will be formed. However, that contract may be voidable as a result of a misrepresentation. Whether a contract is void or voidable is particularly important where third parties have acquired rights in the subject matter of a contract.
7. Consideration and promissory estoppel
Authors: Davies Paul S.
Published: September 2021

This chapter analyses the issue of consideration in contract law. Contracts are generally binding only if supported by consideration. Consideration can be viewed as ‘the price tag on the promise’: a party must provide something in exchange for the promise in order to be able to enforce that promise. That ‘something’ is called ‘consideration’, and might itself be a promise. The requirement of consideration is demanded by the common law. But, in some situations, equity will allow a promisee to enforce a promise, despite a lack of consideration, through the doctrine of promissory estoppel. Where the promisor makes a clear promise, intended to be binding, intended to be acted upon, and in fact acted upon, the courts will not allow the promisor to act inconsistently with that promise if to do so would be unconscionable.
8. Intention to create legal relations
Authors: Davies Paul S.
Published: September 2021

This chapter discusses the intention to create legal relations in the formation of a contract in domestic or social and commercial transactions. In a domestic or social context, there is a presumption that the parties do not intend to create legal relations. In a commercial context, however, the reverse applies and it is presumed that the parties do intend to create legal relations. No matter which presumption initially applies, that presumption may be rebutted by evidence to the contrary. The chapter concludes that it will not always be easy to decide whether an arrangement is more ‘social’ than ‘commercial’ due to the lack of unanimity in cases such as Esso Petroleum Ltd v Commissioners of Customs and Excise. Courts continue to be split on whether or not an intention to create legal relations is present in particular disputes.
12. Interpretation
Authors: Davies Paul S.
Published: September 2021

This chapter examines approaches to contract interpretation. Interpretation is the exercise by which the meaning of the contract is ascertained. Under the so-called traditional approach to interpretation, where the contractual language chosen was clear and unambiguous, that language was simply given effect. By contrast, under the ‘modern’ approach to interpretation, a much broader range of factors can be taken into account, and courts now appear able to depart from the ‘plain meaning’ of a written document. The modern approach takes into account the ‘matrix of fact’ in which the contract is concluded, including the purpose of the contract. The modern approach has been praised for allowing judges greater flexibility in order to reach a fair result, but criticised for undermining commercial certainty, potentially prejudicing third parties, and intruding into the domain traditionally occupied by the doctrine of rectification.
15. Exclusion clauses and unfair terms
Authors: Davies Paul S.
Published: September 2021

This chapter analyses the law on exclusion clauses and unfair terms. Exclusion clauses are terms which exclude or limit a defendant’s liability. The enactment of the Unfair Contract Terms Act 1977 and the Consumer Rights Act 2015 has reduced the importance of common law techniques for avoiding the worst effects of exclusion clauses. Both statutes enable the courts to control the substance of the contract. The Unfair Contract Terms Act 1977 only applies to non-consumer contracts. It empowers a court not to enforce exclusion clauses where they are unreasonable. Unlike the Unfair Contract Terms Act 1977, the Consumer Rights Act 2015 is not limited to exclusion clauses. A term will be unfair if, ‘contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer’.
16. Misrepresentation
Authors: Davies Paul S.
Published: September 2021

This chapter discusses misrepresentation in contract law. Misrepresentation is a statement of fact or law which is false, that induces a party to enter into the contract. A misrepresentation may be made by words or by conduct. All misrepresentations entitle the misrepresentee to rescind the contract. However, rescission will be barred where it is impossible to put the parties back into their original position; or where the misrepresentee has affirmed the contract; or where a long period of time has elapsed; or where a third party who has acquired rights for value in good faith would be disadvantaged by rescission. Damages are available at common law for the tort of deceit or for negligent misrepresentation. Most claims for damages are now made under section 2(1) of the Misrepresentation Act 1967.
18. Undue influence
Authors: Davies Paul S.
Published: September 2021

This chapter examines ‘undue influence’. In a typical case, C claims that a transaction should be set aside because C reposed trust and confidence in D, and the influence that D had upon C was exerted in a way which was ‘undue’. The effect is to render a contract voidable such that it can be rescinded. The basis of undue influence is controversial: it has been argued both that undue influence is based upon D’s exploitation of the relationship, and that the focus is solely upon C’s impaired consent. There are two ways of proving undue influence, which explains actual undue influence and presumed undue influence. Actual undue influence is distinct, though there are overlapping areas, from duress since there is no need to prove a threat or illegitimate pressure. Presumed undue influence requires C to prove that C placed trust in D and that the transaction calls for explanation.
22. Illegality and restraint of trade
Authors: Davies Paul S.
Published: September 2021

This chapter analyses the law on illegality and restraint of trade. The law on illegality is very complicated. Illegal acts vary greatly in range and severity. The Supreme Court has recently held that a ‘range of factors’ need to be considered when deciding whether the claimant’s illegality should defeat a claim, and it is likely that the law will become increasingly flexible in this area. Restraint of trade is concerned with balancing the competing rights of private parties, notably the employer’s right to expect a certain degree of loyalty as regards their business against the employee’s freedom to leave their employment and to undertake new business activities. The key consideration tends to be whether restraint of trade clauses are reasonable.
23. Common mistake: contracts void for failure of a basic contractual assumption
Authors: Davies Paul S.
Published: September 2021

This chapter examines contracts which were avoided because of the failure of a basic contractual assumption before the contract has been concluded. If a contract has been concluded based on a particular contractual assumption, then the failure of that assumption before the contract has been concluded means that the contract is void. This is because both parties have made a fundamental mistake about a basic assumption. A contract cannot be void due to a common mistake where the risk of an assumption failing has been allocated to one of the parties under the contract, or where the failure is attributable to the fault of one of the parties. Very few assumptions are held to be ‘basic’; the threshold is set at a very high level. The failure of the assumption must, at the very least, render performance of the contract fundamentally different from what was reasonably envisaged.
24. Frustration: contracts discharged for failure of a basic contractual assumption
Authors: Davies Paul S.
Published: September 2021

This chapter examines contracts which were avoided because of the failure of a basic contractual assumption after the contract has been concluded. If the failure of a basic contractual assumption occurs after the contract has been concluded, the contract may be frustrated. A frustrating event kills off the contract automatically. However, everything that was done from the making of the contract up to its frustration was, and remains, validly done in pursuance of that contract. A contract cannot be frustrated where the risk of an assumption failing has been allocated to one of the parties under the contract (for example by a force majeure clause), or where the failure is attributable to the fault of one of the parties. The Law Reform (Frustrated Contracts) Act 1943 will determine the consequences of frustration. This legislation provides a statutory mechanism for adjusting the rights of parties after a contract has been frustrated.
29. Remedies beyond compensatory damages
Authors: Davies Paul S.
Published: September 2021

This chapter considers gain-based and equitable remedies for breach of contract, which can be awarded in situations where restricting the claimant to damages would be inadequate. Damages may be awarded to strip a defendant of gains made from a breach of contract. Such ‘restitutionary damages’ are only awarded very rarely in ‘exceptional circumstances’ where the usual remedies for breach of contract are ‘inadequate’, and the claimant has a legitimate interest in preventing the defendant’s profit-making activity and depriving them of their profit. Where damages are inadequate to achieve justice, the court may grant equitable relief. The most important equitable orders are for specific performance and injunctions. Specific performance compels a person to perform their contract. Injunctions can either prevent a person from breaching their contract (prohibitory injunctions) or force a person to comply with their contract (mandatory injunctions).
3. The Rule of Law and the Separation of Powers
Authors: Loveland Ian
Published: September 2021

This chapter examines the various meanings that the ‘rule of law’ principle has been accorded in Britain’s post-revolutionary constitution. The chapter suggests that the idea of the ‘rule of law’ may be viewed as a vehicle for expressing ‘the people’s’ preferences about two essentially political issues. The first relates to the substance of the relationship between citizens and government. The second is concerned with the processes through which that relationship is conducted. More simply, the rule of law is concerned with what government can do—and how government can do it. This chapter analyses both the way in which the courts have addressed these issues in a series of seminal judgments, and also explores various critiques of the idea of the rule of law and the role it plays in the modern British constitution offered by legal theorists from the left, right, and centre of the mainstream political spectrum.
10. Local Government
Authors: Loveland Ian
Published: September 2021

This chapter examines the institution of local government. This topic is often neglected in constitutional law studies, on the rather simplistic basis that since the United Kingdom is not in a legal sense a ‘federal country’ it is only the national governmental system that merits close attention. The suggestion made here is that analysis of the role played by local government institutions reveals a great deal about the nature of ‘democracy’ within our modern constitution. The chapter focuses in general terms on the evolution of ideas relating to localism, tradition, and the ‘modernisation’ of local government and on local government’s changing constitutional status during the course of the twentieth century. More specifically, the chapter examines trends in the institutional structure of the local government sector (and especially the abolition of the Greater London Council and metropolitan counties in the mid-1980s), developments relating to the fiscal autonomy of local government throughout that period, the role played by the judiciary in determining the limits of local government autonomy, and changes in one of the most important areas of local authority activity – the provision of council housing.
12. The Governance of Scotland and Wales
Authors: Loveland Ian
Published: September 2021

This chapter examines how the constitution has addressed the question of the geographical separation of government power in the United Kingdom of England, Scotland, and Wales, and discusses the Scotland Act 1998 and the Government of Wales Acts of 1998 and 2006. It argues that although the Scotland Act 1998 and Government of Wales Act 2006 fall short of creating a ‘federal’ UK constitution similar to how the notion is understood in the United States, the constitutional significance of the devolution legislation should not be underestimated. The chapter also discusses the conduct and outcome of the 2014 independence referendum in Scotland. Consideration is given to the leading Supreme Court judgments on the nature and extent of the Scots Parliament’s legislative powers, and to the contents and implications of the Scotland Act 2016.
13. Substantive Grounds of Judicial Review
Authors: Loveland Ian
Published: September 2021

This chapter discusses the substantive grounds of judicial review: illegality, irrationality, and proportionality. Illegality covers the following: excess of power; the relevant/irrelevant considerations doctrine; unlawful delegation of power; unlawful fettering of power; and the estoppel doctrine. Irrationality is also concerned with the substantive content of a government decision, but focuses on the political or moral rather than (in the strict sense) legal character of the decision. Proportionality review can be defined as a constitutional device that requires the courts to accept that the boundaries of moral consensus within which government bodies are confined are discernibly less broad in substantive terms than those that apply in respect of irrationality-based review.
18. Human Rights II: Emergent Principles
Authors: Loveland Ian
Published: September 2021

This chapter presents an overview of the European Convention on Human Rights, an International treaty originating in the reconstruction of Europe’s political order following World War II. The chapter is organised as follows. Section I discusses the main procedural and substantive features of the Convention itself, whilst Section II assesses its status and use in English law up until (approximately) the early-1990s. Section III examines the leading judgments of the European Court on Human Rights in the areas of privacy and freedom of expression. The chapter goes on to consider how the UK constitution’s approach to the issue of civil liberties and human started to change in the 1970s, 1980s, and 1990s. Discussion focuses initially on the ways in which domestic courts began to use common law ideas to give increasing effect to the Convention’s provisions. The chapter then examines emerging arguments as to the benefits that might result from Parliament enacting a statute giving Convention articles a superior status to common law rules. The chapter then discusses the re-emergence and consolidation of fundamental human rights as an indigenous principle within the common law, and concludes by analysing the so-called ‘judicial supremacism’ controversy of the early and mid-1990s in which the courts’ increasingly forceful assertion of human rights ideas provoked substantial criticism from Conservative party politicians.
20. Human Rights IV: The Impact of the Human Rights Act 1998
Authors: Loveland Ian
Published: September 2021

This chapter analyses some of the leading cases in which the courts addressed different aspects of the Human Rights Act 1998, and draws out the constitutional implications of the courts’ initial conclusions. The discussions cover the interlinked issues of the extent to which the courts have recognised a distinction between Convention articles and Convention Rights, the approach taken to statutory interpretation mandated by s 3, and the use of Declarations of Incompatibility under s 4; the doctrine of judicial ‘deference’ to legislative policy decisions; the ‘horizontality’ of the Act and its impact on the development of the common law; and the status of proportionality as a ground of review of executive action. The chapter concludes with an assessment of whether the Act has triggered a shift in understandings on the proper scope of the doctrines of the sovereignty of Parliament and the rule of law within the modern constitutional order.
21. Human Rights V: Governmental Powers of Arrest and Detention
Authors: Loveland Ian
Published: September 2021

This chapter examines government powers of arrest and detention. Section I provides a three-part analysis of police powers to restrict an individual’s physical liberty under what we might regard as ‘ordinary’ laws. The first part of the chapter considers powers of ‘arrest’; the second section addresses powers of detention that arise consequent upon arrest but before the detained person has been charged with any offence; and the third considers situations in which a person can lawfully be detained without actually being arrested. Section II shifts the focus of the chapter to what we might consider to be ‘extraordinary’ laws, by describing and analysing the extent to which the constitution permits deprivation of liberty for ‘terrorist’ offences, specifically powers of arrest and detention which existed between 1945 to 1977, and then in the post-1977 era.
23. Conclusion
Authors: Loveland Ian
Published: September 2021

This chapter addresses the question of whether it is legally possible to entrench legislation in a way that safeguards it from repeal by the traditional ‘simple majority in Commons and Lords plus Royal Assent’ formula; and, if so, under what political circumstances it might legitimately be employed. It argues that the Blair government’s commitment to establishing a pluralist political culture is head and shoulders above any of their twentieth-century predecessors. This is most evident in its devolution legislation as well as in its embrace of the European Convention on Human Rights and Fundamental Freedoms and the provisions of the Amsterdam Treaty. The same observation may be made about the Blair government’s promotion of the Constitutional Reform Act 2005. Yet these initiatives, desirable though they may be, can hardly be seen as engineering a constituent reformation of the political system.
3. The media and ‘law and order’
Authors: Jones Stephen
Published: September 2021

This chapter presents that fact that, in Britain, most of the information that people receive about crime is second-hand. As relatively few people are victims of serious crime, the offending images that are formed in the minds of the majority largely come from reports and discussions in the mass media. Indeed, with growing urbanisation, it is increasingly necessary to rely on the media to find out what has been happening in one’s own neighbourhood. The chapter considers whether the mass media’s reporting of crime has a significant impact on people’s daily lives and their attitudes to ‘law and order’ issues. There is also a body of research evidence suggesting that media portrayals of violent crime may inspire some people to engage in ‘copycat’ incidents.
5. Crime and the environment
Authors: Jones Stephen
Published: September 2021

This chapter discusses the first significant efforts to study both the environments in which crimes occurred and the areas in which the criminals lived. This type of study was to establish a tradition that began to take hold throughout Europe before entering its best-known period in the hands of the Chicago ecologists. The ills of society, including crime and disorder, were perceived as emanating from the ‘dangerous’ classes. They were considered as vicious and depraved and, after the writings of Charles Darwin, it became easier even for educated opinion to portray them as a race apart. Any defects in morality were also attributed to the appalling conditions in which one had to live.
7. Subcultural theories
Authors: Jones Stephen
Published: September 2021

This chapter discusses Robert Merton’s anomie theory, which indicated several possible forms of reaction by individuals who had suffered from the strain of being unable to attain society’s ultimate goal by the institutionalised means made available to them: typically, regular, productive work. For some, the reaction could involve engaging in deviant or criminal behaviour. Merton’s approach was adopted and modified by other sociologists and criminologists, who were interested in studying the behaviour of groups—usually of young people—within a society, which deviate from or totally reject the views of the majority. Such groups are referred to by sociologists as subcultures. The use of the term ‘subculture’ has largely centred on juvenile delinquent gangs. This restriction is unfortunate because subculture is a sociological concept that has a wide application and the relationship with the emotive topic of gangs has, in many ways, proved to be counterproductive.