bluuebunny/crossref_metadata_2025 huggingface dataset:
10. Realist criminology and victims
Authors: Jones Stephen
Published: September 2021

This chapter focuses on realist criminology, a phenomenon that appeared under different names in Britain and the USA during the 1980s. Just as with the re-emergence of interactionism and the development of the ‘new criminologies’ in the 1960s, realist criminology owes much to the political background of the day: what is sometimes referred to as the ‘Reagan–Thatcher Decade’, with right-wing governments in both countries. In such a climate, it is hardly surprising that little interest was shown in considerations of why people commit crimes, but great interest was shown in doing something about it. Out of this, two ‘realisms’ have emerged: a ‘Right Realism’ and a ‘Left Realism’.
13. Biological factors and crime
Authors: Jones Stephen
Published: September 2021

This chapter presents the idea that criminals can be distinguished from the rest of the population by some unusual physical or biological characteristic that renders them inferior. Havelock Ellis cites a law in medieval England that stated that ‘If two persons fell under suspicion of crime, the uglier or more deformed was to be regarded as more probably guilty.’ When Socrates was on trial, a study of his face conducted by a physiognomist was ordered; this showed that he was cruel and inclined to drunkenness. Physiognomy, which is the assessment of character from facial features, in due course, gave way to phrenology. Phrenology held that the workings of the mind are related to the shape of the brain and skull and that measurement of bumps on the skull can provide an indication of personal characteristics.
15. Personality theories
Authors: Jones Stephen
Published: September 2021

This chapter discusses the term ‘personality’, which is used to describe an individual’s temperamental and emotional attributes that are relatively consistent and that will influence behaviour. It also considers the extent to which the leading psychological explanations of personality development can be related to criminal behaviour. Psychologists use different classifications—some might include considerations of biological factors or aspects of mental disorder such as psychopathy within the category of personality—and refer to a persistent or stable personality characteristic as a trait. For many years, they have devised tests aimed at measuring personality traits in an attempt to test the hypothesis that people who are prone to act in an antisocial way are distinguishable from ‘normal’ people.
Prospects
Authors: Jones Stephen
Published: September 2021

In this book, consideration has been given to various theories which have been put forward as to why people commit crimes. Some of these explanations claim that they can account for all criminality; others are more modest in their ambition. Some theories locate the primary source of criminality within the individual; others consider that aspects of the organisation of society are mainly responsible. The theories have been fully discussed in the main body of the book and there is no need to summarise them here. Some criminologists, especially in the USA, have tried to create integrated theories, combining both individual and societal explanations (for example, ...
3. The Course of Evidence
Authors: Choo Andrew L-T
Published: September 2021

Chapter 3 examines the principles relating to the presentation of evidence in court. It first discusses the adversarial tradition upon which the English trial process is based. It then distinguishes between the principles governing the questioning of one’s own witness (which occurs in examination-in-chief and re-examination) and those governing the questioning of another party’s witness (which occurs in cross-examination). It shows that, in criminal proceedings, provisions in the Criminal Justice Act 2003 now deal with two particular matters that may arise in the course of questioning one’s own witness—the extent to which refreshing memory is permitted, and the extent to which a previous consistent statement is admissible in evidence. The chapter also considers other issues, including the judicial approach to ‘no case to answer’ submissions in criminal trials, and the extent to which the claimant or prosecution may adduce further evidence after closing its case.
6. Identification Evidence
Authors: Choo Andrew L-T
Published: September 2021

Chapter 6 first considers the three categories of factors which may contribute to the mistaken identification of the defendant as the perpetrator of the offence: witness factors, event factors, and post-event factors. It then turns to R v Turnbull in 1976, where the Court of Appeal laid down the famous ‘Turnbull guidelines’ on judicial warnings to the jury about visual identification evidence. This is followed by discussions of discretionary exclusion of identification evidence and the use of photographs and video recordings.
9. Legal Professional Privilege
Authors: Choo Andrew L-T
Published: September 2021

Chapter 9 focuses on the doctrine of legal professional privilege. Technically, this encompasses two separate privileges: legal advice privilege, which protects communications between client and legal adviser; and litigation privilege, which protects communications between client or legal adviser and a third party, so long as preparation for litigation is the dominant purpose of the communication. Legal advice privilege, unlike litigation privilege, is regarded as ‘absolute’ and incapable of being overridden. The chapter also briefly looks at ‘without prejudice privilege’, aspects of which the House of Lords and Supreme Court have considered in relatively recent years.
12. Expert Evidence
Authors: Choo Andrew L-T
Published: September 2021

Chapter 12 deals with expert evidence. It discusses the principles governing the admissibility of expert opinion evidence; use of the work of others and the rule against hearsay; expert witnesses; ‘battles of experts’ and the presentation of expert evidence; and disclosure and evaluation of expert evidence.
13. Witnesses
Authors: Choo Andrew L-T
Published: September 2021

Chapter 13 examines three broad issues pertaining to witnesses. First, it considers whether certain categories of persons may be incompetent to testify, or, even if competent to testify, may not be compellable to do so. It then examines the relaxation of the rules on corroboration, and the emergence of a more contemporary approach to possibly unreliable witnesses. Finally, it investigates the availability and adequacy of any special measures or procedures for easing the burden on testifying witnesses.
6. European Law II
Authors: Schütze Robert
Published: September 2021

This chapter begins with an analysis of the primacy doctrine. There are two perspectives on the primacy question. According to the European perspective, all Union law prevails over all national law. This ‘absolute’ view is not shared by all the Member States. Indeed, according to their national perspective(s), the primacy of European law is relative: some national law is considered to be beyond the primacy of European law. The chapter then moves to the doctrine of pre-emption. This concept discusses to what extent European law ‘displaces’ national law; or how much legislative space European law still leaves to the Member States. The Union legislator is generally free to choose to what extent it wishes to pre-empt national law within a certain area. However, there are two possible constitutional limits to this freedom. First, the type of instrument used—regulation, directive, or international agreement—might limit the pre-emptive effect of Union law. And, second, the type of competence on which the Union act is based might also determine the capacity of the Union legislator to pre-empt the Member States.
11. Judicial Powers II
Authors: Schütze Robert
Published: September 2021

This chapter discusses the ‘decentralized’ powers of the European Court of Justice. It looks at two specific constitutional principles that the Court has derived from the general duty of sincere cooperation: the principle of equivalence and the principle of effectiveness. Both principles have led to a significant judicial harmonization of national procedural laws. The chapter then turns to a third incursion into the procedural autonomy of national courts: the liability principle. While the previous two principles relied on the existence of national remedies for the enforcement of European law, this principle establishes a European remedy for proceedings in national courts. An individual can here, under certain conditions, claim compensatory damages resulting from a breach of European law. Importantly, the remedial competence of national courts is confined to national wrongs. They cannot give judgments on ‘European’ wrongs, as jurisdiction over the latter is—like the power to annul Union law—an exclusive power of the Court of Justice of the European Union. Finally, the chapter explores what happens in areas in which the Union has harmonized the remedial or jurisdictional competences of national courts.
12. Limiting Powers
Authors: Schütze Robert
Published: September 2021

This chapter investigates each of the European Union’s three bills of rights and the constitutional principles that govern them. It starts with the discovery of an ‘unwritten’ bill of rights in the form of general principles of European law. The chapter then moves to an analysis of the Union’s ‘written’ bill of rights: the EU Charter of Fundamental Rights, which was adopted to codify already existing human rights in the Union legal order. It also considers the formal relationship between the European Union and the European Convention on Human Rights. Finally, the chapter explores the relationship between EU fundamental rights and the Member States. Despite being primarily addressed to the Union, EU fundamental rights can, in some situations, also bind the Member States (and even their nationals). National courts may thus sometimes be obliged to review the legality of national law in the light of EU fundamental rights.
Conclusion. The Future(s) of the European Union
Authors: Schütze Robert
Published: September 2021

This concluding chapter explores the European Union’s potential future evolution alongside two dimensions. A horizontal dimension focuses on the widening or narrowing of its membership, while a vertical dimension explores the deepening or flattening of its level of integration. Every change in the membership of the Union represents a fundamental change in its material constitution. This change can occur either through European enlargements or national withdrawals. Brexit in 2020 was the first instance in which a Member State withdrew from the European Union. Ultimately, the possibility of future reductions in EU membership cannot be categorically excluded; yet the political appetite seems minimal. And a national exit from the European Union will also be much harder for those States within the Union that have constitutionally committed themselves to European integration. The chapter then looks at the European Commission’s ‘White Paper on the Future of Europe’, which presents five scenarios offering ‘a series of glimpses into the potential state of the Union by 2025’.
1. Constitutional History
Authors: Schütze Robert
Published: September 2021

This chapter surveys the historical evolution of the European Union in four sections. Section 1 starts with the humble origins of the Union: the European Coal and Steel Community (ECSC), which was set up by the 1951 Treaty of Paris. While limited in its scope, the ECSC introduced a supranational idea that was to become the trademark of the European Economic Community (EEC). Section 2 focuses the EEC, while Section 3 investigates the development of the (old) European Union founded through the Treaty of Maastricht. Finally, Section 4 reviews the reform efforts leading to the Lisbon Treaty, and analyses the structure of the—substantively—new European Union as it exists today. Concentrating on the constitutional evolution of the European Union, the chapter does not present its geographic development.
2. Constitutional Nature
Authors: Schütze Robert
Published: September 2021

This chapter discusses the nature of the European Union, presenting two opposing ‘federal’ traditions that have been competing with each other over the past 200 years. It begins by introducing the US federal tradition, which has historically understood a Union of States as a third form of political organization between international and national law. The chapter then moves to the newer German federal tradition. Insisting on the indivisibility of sovereignty, this second tradition ultimately led to the following conceptual distinction: a ‘Union of States’ is either an international organization—like the United Nations—or a nation State—like Germany or the United Kingdom. Finally, the chapter applies both theories to the European Union. From the perspective of the older US tradition, the European Union can be seen as a Federation of States. The German tradition, by contrast, reduces it to a (special) international organization. Which is the better theory here? If legal theories are meant to explain legal practice, one sees that the second theory—insisting on the idea of State sovereignty—runs into serious explanatory difficulties and should consequently be discarded. The European Union is indeed best understood as a ‘Federation of States’.
4. Governmental Structure
Authors: Schütze Robert
Published: September 2021

This chapter focuses on the internal composition, internal powers, and internal procedures of the European Commission, the Court of Justice of the European Union (CJEU), the European Central Bank (ECB), and the Court of Auditors. The Commission constituted the centre of the European Coal and Steel Community (ECSC), where it was ‘to ensure that the objectives set out in [that] Treaty [were] attained’. In guiding the European Union, it acts (together with the European Council) like the Union's ‘government’. The CJEU constitutes the judicial branch of the European Union. However, it is not the only one to interpret and apply European law. From the very beginning, the European legal order intended to recruit national courts in the interpretation and application of European law. Meanwhile, the Treaty on the Functioning of the European Union (TFEU) defines the ‘primary objective’ of the European Central Bank as the maintenance of price stability. Finally, the Court of Auditors is staffed by accountants, whose primary task is to ‘carry out the Union's audit’.
7. Legislative Powers
Authors: Schütze Robert
Published: September 2021

This chapter addresses what the legislative powers of the European Union are, and what types of procedures are legislative procedures. It begins by analysing the scope of the Union's legislative competences. This scope is limited, as the Union is not a sovereign State. The chapter then looks at the different categories of Union competences. Depending on what competence category is involved, the Union will enjoy distinct degrees of legislative power. The chapter also considers the identity of the Union legislator. Various legislative procedures thereby determine how the Union must exercise its legislative competences. Finally, the chapter scrutinizes the principle of subsidiarity as a constitutional principle that controls the exercise of the Union's shared legislative powers.
8. External Powers
Authors: Schütze Robert
Published: September 2021

This chapter explores the external competences and procedures of the European Union. Sadly, the Union here suffers from a ‘split personality’ because it has a split constitutional regime for foreign affairs. It has a general competence for its ‘Common Foreign and Security Policy’ (CFSP) within the TEU; and it enjoys various specific external powers within the TFEU. The chapter analyses each of these competences and their respective nature. It then looks at the procedural dimension of the external relations of the Union. How will the Union act, and which institutions need to cooperate for it to act? This depends on which of the two constitutional regimes applies. While the CFSP is still characterized by an ‘executive’ dominance, the procedures within the Union's special external powers are closer to the ‘legislative’ branch. Finally, the chapter considers two constitutional safeguards regulating the exercise of shared external competences: mixed agreements and the duty of loyal cooperation.
12. Limiting Powers
Authors: Schütze Robert
Published: September 2021

This chapter investigates each of the European Union's three bills of rights and the constitutional principles that govern them. It starts with the discovery of an ‘unwritten’ bill of rights in the form of general principles of European law. The chapter then moves to an analysis of the Union's ‘written’ bill of rights: the EU Charter of Fundamental Rights, which was adopted to codify already existing human rights in the Union legal order. It also considers the formal relationship between the European Union and the European Convention on Human Rights. Finally, the chapter explores the relationship between EU fundamental rights and the Member States. Despite being primarily addressed to the Union, EU fundamental rights can, in some situations, also bind the Member States (and even their nationals). National courts may thus sometimes be obliged to review the legality of national law in the light of EU fundamental rights.
15. Free Movement of Persons
Authors: Schütze Robert
Published: September 2021

This chapter evaluates the sources of movement rights for persons, as well as the horizontal connections between them. It analyses the special free movement rights for economically active persons; that is, workers and self-employed professionals. Importantly, the freedom of establishment here also covers companies. The chapter then specifically looks at the free movement rights of companies (and their subsidiaries). It also introduces the horizontal provisions on EU citizenship and their relationship to the special movement rights for workers and the self-employed. Finally, the chapter considers the horizontal rules that govern the various justifications for national restrictions on the free movement of persons. In addition to the ordinary public policy justifications, the main derogation here is a public service exception that allows Member States to restrict access to professions that are linked to the exercise of public authority.
16. Free Movement of Services and Capital
Authors: Schütze Robert
Published: September 2021

This chapter focuses on the third and fourth fundamental freedom of the European Union's internal market: the freedom of services and the freedom of capital. It begins by analysing the general aspects of the free movement of services. The European Court has significantly pushed negative integration through a restriction test; yet the Union has here equally followed a positive integration path in the form of the ‘Services Directive’. The chapter moves to two special—and very controversial—services regimes, namely that for posted workers and that for public services. It then deals with the free movement of capital, considering the scope of the (negative) freedom and surveying the various grounds on which restrictions to the free movement of capital may be justified.
19. External Policies
Authors: Schütze Robert
Published: September 2021

This chapter presents an overview of the four most important external policies of the European Union. It starts with the Common Commercial Policy (CCP), which still constitutes the ‘centrepiece’ of EU external relations. It is set out in Title II of the External Action Part of the Treaty on the Functioning of the European Union (TFEU). The chapter also looks at the legal foundations of the Union's development policy. The Union's development policy draws on various parts within the EU Treaties, of which Chapter 1 within Title III of the External Action Part represents only an element of the overall picture. The chapter then moves to the Common Foreign and Security Policy, which touches upon the military heart of the Member States' external sovereignty; and it has therefore been subject to very rigid political safeguards of federalism. Finally, it explores the ‘policies’ of association and enlargement. While not styled as external policies as such, the Union has nonetheless turned both into formidable strategic tools to ‘export’ its values.
3. Classical legal positivism
Authors: Wacks Raymond
Published: September 2021

This chapter examines the important theory of legal positivism that has long dominated jurisprudence. It explains the core ideas of the theory, and then considers the leading proponents of classical legal positivism, especially the leading nineteenth century philosophers, Jeremy Bentham and John Austin. Bentham is best known as a utilitarian and law reformer, but he insisted on the separation between the ‘is’ and ‘ought’ of law, or what he preferred to call ‘expositorial’ and ‘censorial’ jurisprudence, respectively. Austin was equally emphatic in maintaining this distinction, but his analysis is generally regarded as much narrower in scope and objective than Bentham’s.
5. Dworkin and law’s moral claims
Authors: Wacks Raymond
Published: September 2021

This chapter discusses the essential elements of Dworkin’s theory of law. It focuses on Dworkin’s assault on positivism and his insistence upon the close relationship between morals and the law. By denying the positivist separation between law and morals, he expounds a theory that rejects the proposition that judges either do or should make law, and contends instead that judges have an obligation to find and express ‘the soundest theory of law’ on which to decide hard cases; and concludes that, since judges (who are unelected officials) do not make law, the judicial role is democratic and prospective. His approach is based on the notion that only by adopting this view of the judicial function can the law take rights seriously.
4. Duty of care III: property damage and purely financial loss
Authors: Witting Christian
Published: September 2021

This chapter is concerned with duties of care that arise when the claimant suffers either property damage or purely financial loss (that is, loss not attendant on physical damage or on any other primary interest recognised in negligence). Again, we find that duties of care are quite expansive with respect to property damage when the claimant owns or possesses the property in question. By contrast, duties of care are restricted with respect to purely financial losses. The most frequently upheld duties in the latter category cover negligent misstatements and the negligent provision of professional services, the scope of which is dictated by application of the Hedley Byrne v Heller framework or some variant of it.
13. Defences to intentional torts against the person or property
Authors: Witting Christian
Published: September 2021

This chapter examines the types of defence that can be used to counter claims for intentional torts against property or person (although they might be applicable to other torts as well). It explains that defences to these torts can be placed within a threefold system. The first category consists of absent element defences (a successful plea means that the tort has not been committed), the second comprises justification defences (meaning that there was reason to commit the tort), and the third contains public policy defences (which means that the interests of the state intrude so as to deprive the claimant of an action).
19. Breach of statutory duty
Authors: Witting Christian
Published: September 2021

This chapter examines how statutory obligations occasionally give rise to private actions in tort. It explains that a breach of a statutory duty will not automatically confer a right of action on anyone adversely affected by it (and that it does not necessarily ground an action for negligence either). The chapter sets out the relevant elements of the statute-based tort, noting that the claimant must prove both that he was intended by Parliament to be protected as an individual and that the protection was aimed at preventing the kind of loss he suffered. If these elements are fulfilled, he will be entitled to compensation for loss. Defences specific to this area of law are considered also.
25. Capacity and parties
Authors: Witting Christian
Published: September 2021

This chapter examines the issues of capacity and parties in tort law. It explains that capacity refers to the status of legal persons and their ability to sue or be sued in tort and that a claimant’s injury might be caused by more than one person. Examples are given of the capacity to sue and be sued of companies and children. This chapter discusses also the point that any person successfully sued in tort can seek contribution from other joint or concurrent tortfeasors and this can be done in the course of the original action commenced by the claimant, or in separate proceedings between tortfeasors.
2. Introduction to the tort of negligence
Authors: Horsey Kirsty , Rackley Erika
Published: September 2021

The chapter begins by mapping and explaining the historical development of the tort of negligence, and some of the key themes underpinning the tort, before placing the discussion in the context of the modern law of negligence. The chapter then outlines the essential ingredients of a claim in negligence—a duty of care, a breach of that duty and the damage caused by that breach—before going on to explore these in practice through a close examination of the first instance judgment in X & Y v London Borough of Hounslow [2008].
11. Occupiers’ liability
Authors: Horsey Kirsty , Rackley Erika
Published: September 2021

This chapter discusses occupiers’ liability, which deals with the risks posed, and harms caused, by dangerous places and buildings. In such cases, the occupier of the premises may be liable where a person who comes onto their land is injured in or by unsafe premises if the occupier has not taken reasonable care to ensure that those entering are safe. The general principles of negligence have been incorporated into, and modified by, statute in the form of the Occupiers’ Liability Acts 1957 and 1984. Although the Acts define the circumstances in which a duty of care will be owed (and tell us something as to its extent, as well as matters relating to its discharge and limitation), questions of breach and causation still need to be established by reference to the ordinary principles of negligence.
14. Breach of statutory duty
Authors: Horsey Kirsty , Rackley Erika
Published: September 2021

This chapter considers the tort of breach of statutory duty. Unlike the statutory duties contained in the Occupiers’ Liability Acts 1957 and 1984 or the Consumer Protection Act 1987 where liability arises directly according to the provisions of the statute itself, in a civil action in the tort of breach of statutory duty, liability arises indirectly where a statute imposes a duty but does not identify a civil remedy in the event of its breach. The tort is a combination of statute and the tort of negligence; the duty is defined by statute, while the action lies in the common law. It should be noted that while much of the case law arises in the employment context, the tort of breach of statutory duty extends beyond this.
19. Actions under the rule of Rylands v Fletcher
Authors: Horsey Kirsty , Rackley Erika
Published: September 2021

This chapter examines the rule from Rylands v Fletcher [1868]. The rule holds that where there has been an escape of a dangerous thing in the course of a non-natural use of land, the occupier of that land is liable for the damage to another caused as a result of the escape, irrespective of fault. The rule today is best understood through a trilogy of cases: Rylands v Fletcher, Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] and Transco v Stockport Metropolitan Borough Council [2004]. The development of the rule has led to an increased overlap with ideas from nuisance and negligence.
1. What’s Special About Land?
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: September 2021

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter illustrates the significance of land and, hence, of land law. It concentrates on the features that make land special and the distinctive legal rules produced by those features. The chapter explains that the focus of land law is on private property rights to use land. It then demonstrates some important themes of land law by examining an important land law case involving a dispute between an occupier of land and a bank. It is noted that the special features of land sharpen the court’s dilemma when deciding between competing claims to the use of land. It also considers the differing judicial philosophies that may influence a court’s approach to resolving this dilemma.
6. Equitable Interests
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: September 2021

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter explores the content of equitable interests in land, and considers how such rights differ from personal rights and also from legal estates and interests. Equitable interests in land are capable of being asserted against third parties and so differ from personal rights. The content and acquisition questions are answered differently, depending on whether B claims a legal or an equitable property right. It is also noted that, in general, equitable interests in land, unlike legal estates and interests, do not bind strangers who interfere with the land. Equitable interests also depend on A’s coming under a duty to B. It is therefore suggested that equitable property rights are conceptually different from legal property rights.
9. Adverse Possession
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: September 2021

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter investigates in detail adverse possession. The acquisition of title by adverse possession consists of two distinct stages: first, the inception of adverse possession; and, secondly, the operation of limitation rules at the end of the requisite period of adverse possession. The concept of adverse possession reflects ideas underlying unregistered titles. The operation of adverse possession is generally incompatible with the ideas underpinning registration of title and this led to significant reforms in the Land Registration Act 2002 (LRA 2002). The LRA 2002 provides a new scheme of adverse possession through which title is obtained by registration, rather than by possession. A criminal offence of squatting in a residential building was introduced in 2012, but it has been held that the commission of the offence does not preclude a claim to title by adverse possession under the LRA 2002. Adverse possession rules have also been held to be human rights compliant.
11. Trusts
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: September 2021

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter describes how trusts may arise in relation to land, providing an overview of key situations in which a party may acquire an equitable interests under a trust of land. It considers express, resulting, and constructive trusts of land. A resulting trust can arise in favour of A, where A purchases or contributes to the purchase of land held by B, or in some cases where A transfers land to B without receiving anything in return. Constructive trusts arise in a number of diverse circumstances in which it can be said that it would be unconscionable for the legal owner to assert his or her own beneficial ownership and to deny the beneficial interest of another. They may arise, for example, under the doctrine in Rochefoucauld v Boustead and the Pallant v Morgan equity. The doctrine in Rochefoucauld v Boustead imposes a constructive trust to prevent a transferee of land from fraudulently relying on the absence of compliance with formalities to deny a trust pursuant to which the land was transferred. The Pallant v Morgan constructive trust can arise where one party acquires land pursuant to an informal commercial joint venture and reneges on an agreement that another party will have an interest in the land. The trust has been categorized as a form of ‘common intention constructive trust’ but this categorization is contentious.
12. Interests in the Home: The Acquisition Question
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: September 2021

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter explores the acquisition question in relation to the family home through an analysis of the doctrines of resulting and constructive trusts. The chapter explains the different initial presumptions drawn in cases of joint and sole legal ownership and the particular approach that has been adopted in the case of a home purchased ‘in joint names for joint occupation by a married or unmarried couple, where both are responsible for any mortgage’. The chapter considers how the ‘common intention’ of parties in relation to the common intention constructive trust is determined differently in relation to the primary acquisition question (in cases of sole legal ownership) and the secondary question of the quantification of beneficial shares (applicable in cases of joint and sole beneficial ownership). The chapter addresses the contentious issue of the extent to which the courts’ broader approach to common intention in relation to quantification may be carried over to the primary acquisition question. The chapter considers statutory rights to occupy and current Law Commission proposals for reform.
14. Co-ownership and Third Parties: Applications for Sale
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: September 2021

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter considers applications for sale of land held on trust, which are brought by third parties; typically creditors and trustees in bankruptcy of a beneficiary. The chapter explores the different legislation and rules that apply depending on whether the application is made by a creditor or a trustee in bankruptcy. Since the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996), applications made by creditors are considered under the general provisions of that Act, while those by trustees in bankruptcy are considered under the Insolvency Act 1986.
16. Priorities in Registered Land
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: September 2021

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter explores the defences against pre-existing property rights that are available to a party who acquires for value and registers a right in registered land. The Land Registration Act 2002 (LRA 2002) offers a distinct set of priority rules for one category of transaction: a registrable disposition of a registered estate for valuable consideration. The chapter analyses the priority rules applicable to such transactions, including the effect of the entry of a land registry notice, the category of ‘overriding interests’ (property rights immune to a lack-of-registration defence), and limitations on the powers of a registered owner. The chapter concludes by examining the policy of the LRA 2002 to transactions that are tainted by fraud or wrongdoing that is not such as to invalidate the transaction. Such transactions may result, under the general law, in the creation of new direct rights which may, for example, impose personal liability on a registered party.
17. Co-ownership and Priorities: The Defences Question
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: September 2021

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter deals with the priority rules applicable where co-owned land is sold or mortgaged. It concentrates on overreaching. It is theorized that s 27(1) of the Law of Property Act 1925 (LPA 1925) provides the basis of overreaching. Other theories include that the basis of overreaching lies in the doctrine of conversion and the trustees’ powers of disposition. The chapter considers the preconditions for overreaching to take place and the practical division that arises between trusts with one and two (or more) trustees. The chapter explores the contentious question of the effect on overreaching where a transaction constitutes an intra vires or ultra vires breach of trust and the protection available to purchasers in those circumstances where a breach of trust precludes overreaching.
18. Reform of the Land Registration Act 2002
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: September 2021

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter looks at recent Law Commission proposals to reform the Land Registration Act 2002 (LRA 2002). It focuses on reforms that relate to situations where there are gaps in the protection of a registered party: rectification and overriding interests. It considers the current law on rectification in three-party cases and the reforms proposed by the Law Commission. It considers not only the Law Commission’s proposals on overriding interests, but also other ideas for reform, such as the extension of indemnity payments. The chapter contrasts the rhetoric in the Law Commission’s recent work with that which preceded the LRA 2002 and notes how the new proposals are based on a more nuanced approach, which balances the need of a registered party against other policy concerns.
19. Leases
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: September 2021

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter focuses on a key feature of a lease: its ability to count as a property right. It explores the three principal questions that apply to any property right: the content question, the acquisition question, and the defences question. It evaluates how the judges’ approach to defining the content of a lease as a property right may have been affected by the presence of statutory protection. The courts’ approach to the content of a lease may be shaped by the fact that, if B has such a right, he or she may qualify (or have qualified) for significant statutory protection. It also considers the impact of the requirement that a lease must have a certain term. The chapter also considers the debate as to the contractual or proprietary nature of the lease.
20. Regulating Leases and Protecting Occupiers
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: September 2021

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter reviews the statutory protection potentially available to B if he or she has a lease. It is shown that, in some cases, B can be seen as having a lease (at least, in the sense used by a particular statute) even if B has no property right. A lease can give B status: the status of a party qualifying for statutory protection. As the Law Commission has noted, however, it is questionable whether the availability of such protection should continue to turn on whether B has a lease, rather than a licence, and a new approach has recently been taken in Wales.
21. Leasehold Covenants
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: September 2021

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter explores the concept of a leasehold covenant. It investigates the mechanisms by which both negative and positive leasehold covenants bind subsequent purchasers of the lease from the original tenant and subsequent purchasers of the freehold reversion from the landlord. It also considers the law governing the enforcement of leasehold covenants and the process of forfeiture by which a landlord can bring the lease to an end for a failure by the tenant to perform the tenant’s covenants. In addition, it focuses on forfeiture, as the most common measure with which to compel the performance of the tenant’s covenants. Forfeiture is the process by which a landlord can extinguish a lease by exercising a right to re-enter the premises. It provides ‘an essential management tool, particularly in relation to commercial and long residential leases’, but it can also be a heavy-handed response.
24. Flat Ownership: Long Leases and Commonhold
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: September 2021

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter addresses the far-reaching issues of ensuring the effective and efficient management of flats. Flat ownership is obtained by granting the flat owner a long lease of his or her flat, with the freehold reversion being held either by an independent landlord or by a company owned collectively by the flat owners. The Commonhold and Leasehold Reform Act 2002 has introduced commonhold to offer a new framework for flat ownership, but, in many cases, it holds few advantages over the long lease where the reversion is collectively owned by the flat lessees through a corporate vehicle.
1. Introduction
Authors: Smith Ian , Baker Aaron , Warnock Owen
Published: September 2021

This book focuses on employment law, which has been the subject of as rapid a transformation as can have happened to any legal subject in recent times, and is certainly one of the most difficult areas of law in which to keep up to date. In some ways employment law is a curious mixture of ancient and modern, for much old law lies behind or at the basis of new statutory law and in some cases the old law continues to exist alongside the new. The subject is, however, unrecognizable from what it was only 40 years ago, with the enormous increase in statute law and the ever-increasing volume of case law on the modern statutes. Thus, the intending student must be able to exercise the lawyer’s skill in dealing with both extensive case law and major statutes, sometimes of astounding complexity. As well as setting out the history of this area of law, this chapter covers important background features of procedure and the enforcement of the law through tribunals, including significant developments such as ACAS early conciliation, the fiasco over tribunal fees, and possible future reforms to the system of adjudication.
5. The work–life balance legislation
Authors: Smith Ian , Baker Aaron , Warnock Owen
Published: September 2021

This chapter addresses a number of legislative regimes creating rights that affect the balance between work and life outside of work. Specifically, the discussion focuses on the controls over working hours and rest breaks and the right to paid annual leave in the Working Time Regulations; the law on maternity, adoption, paternity, shared parental and other parental leave; and the right to request flexible working arrangements. Although not all of these rights can claim work–life balance as their original policy driver, they have come to be seen as representing a loosely coherent programme for ensuring that the process of earning a living does not preclude any worker from enjoying other aspects of life, especially family life. The chapter considers, singly, each of these work–life rights, and the policies and legislation behind them and assesses whether the law delivers effective and useful rights. Gender inequality forms a central theme of the chapter, noting that many work–life balance problems flow from unequal gender norms in the home.
9. Collective labour law
Authors: Smith Ian , Baker Aaron , Warnock Owen
Published: September 2021

This chapter considers the laws that affect trade unions and employment relations at a collective level, with the exception of strikes and other industrial action, which are examined in Chapter 10. The chapter begins by considering the legal status of a trade union and the statutory concept of trade union independence. The applicability of trade union law to workers in the gig economy is also considered. The focus then shifts to the ways in which the law seeks to secure freedom of association, by provisions which protect and support union membership and activities including giving protection against discrimination and providing rights to time off for union duties and activities. The chapter then turns to the concept of recognition of unions for collective bargaining, and the legal rights that come with recognition. It also examines the statutory system for securing recognition. The relevance of the European Convention on Human Rights is considered throughout, as are the changes made by the Trade Union Act 2016. The law relating to domestic and European works councils is also considered.
10. Industrial action
Authors: Smith Ian , Baker Aaron , Warnock Owen
Published: September 2021

This chapter considers the law relating to strikes and other industrial action including the important changes made by the Trade Union Act 2016. It deals with the historical development of common law and statute in this field to illuminate the current law. The relevance of the European Convention on Human Rights is considered. The tortious and criminal liabilities flowing from industrial action are considered, as well as the crucial immunity for tortious liability provided by the ‘golden formula’, including the exceptions to this immunity and the preconditions of complying with rules on balloting and notice of industrial action. Picketing is considered in relation to the many legal liabilities and the statutory immunity for some peaceful picketing. The granting of injunctions to stop industrial action is examined. The impact of industrial action on individual employees is considered in relation to their contractual rights and liabilities and the law of unfair dismissal.
1. The English Legal System
Authors: Gillespie Alisdair A. , Weare Siobhan
Published: September 2021

This chapter provides an introduction to the English Legal System. Specifically, it explains the meaning of the terms ‘English’, ‘legal’, and ‘system’. It first provides an overview of the constituent parts of the United Kingdom of Great Britain and Northern Ireland, namely England, Wales, Scotland, and Northern Ireland. It describes the types of law that exist and attempts to define what law is. It then discusses the English legal system, which is based on common law and is an adversarial system.