bluuebunny/crossref_metadata_2025 huggingface dataset:
9. Monitoring, implementing, and enforcing human rights
Authors: Smith Rhona K. M.
Published: September 2022

This chapter examines the international system for monitoring the implementation of human rights within States. With a focus on the monitoring and enforcement mechanisms of the United Nations, the chapter covers the periodic State reports system, as well as both the inter-State and the individual complaints systems. Challenges with the systems are also considered. Furthermore, the chapter describes the role of rapporteurs and special investigations through commissions of inquiry and fact-finding missions, which are increasingly deployed by the UN. Other UN entities which contribute to the protection and promotion of rights and freedoms are also discussed.
10. Substantive rights—general comments
Authors: Smith Rhona K. M.
Published: September 2022

This chapter discusses the reality of human rights protection within States. It addresses the limitations of various rights and the extent to which States can deviate from responsibility in terms of international human rights law. It covers issues such as State discretion in selecting and applying rights, particularly through derogations, reservations, declarations, and denunciations. This builds on the introduction to treaty law provided in Chapter 1. These are issues which impact on almost all human rights and almost all States in some way. Cases and communications are drawn on to illustrate the practical implications.
19. Indigenous peoples’ and minority rights
Authors: Smith Rhona K. M.
Published: September 2022

This chapter examines the scope and application of indigenous peoples’ rights and minority rights in international human rights law. It discusses the recognition of the need for minority protection in the drafting of the International Bill of Human Rights; analyses the provisions of Art 27 of the International Covenant on Civil and Political Rights; and describes tests employed to determine minority status. The chapter also considers developments in the protection of minority rights in Europe. The rights of indigenous peoples are also examined.
21. The right to education and human rights education
Authors: Smith Rhona K. M.
Published: September 2022

This chapter discusses the right to education and human rights education in international human rights law. It covers access to education, the nature of education, academic freedom, the United Nations Special Rapporteur on the right to education, achieving universal education on human rights, teaching non-discrimination, and the United Nations Decades of Human Rights Education. Education is identified as a key to unlocking development opportunities, breaking the cycle of poverty, and promoting empowerment and equality. For human rights education, obviously it is difficult for rights holders to claim their rights if they do not know what they are. Ensuring human rights education empowers rights holders and, indeed, can build capacity of duty bearers.
1. The origins of the European Union and EU law
Authors: Berry Elspeth , Bogusz Barbara , Homewood Matthew , Strecker Sophie
Published: September 2022

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 history of the European Union. It covers the historical rationale for the EU; the aims of the EU; the four stages of economic integration; economic and political difficulties; expansion of membership; institutional developments; legal developments; closer European integration; the Treaty of Rome (1957); the Single European Act (1986); the Treaty on European Union (1992); the Treaty of Amsterdam (1997); the Charter of Fundamental Rights; the Treaty of Nice (2001); the Treaty of Lisbon (2007); and the potential process for and impact of ‘Brexit’.
6. Preliminary references
Authors: Berry Elspeth , Bogusz Barbara , Homewood Matthew , Strecker Sophie
Published: September 2022

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 considers the procedure whereby a national court may make a preliminary reference to the Court of Justice under Article 267 TFEU and receive a preliminary ruling on the questions which it has referred. The chapter examines the questions of law that may be referred to the Court of Justice; the criteria for the ‘court or tribunal’ which may make a reference; from which courts a reference is discretionary and from which it will be mandatory; references concerning the interpretation and validity of EU law; national courts’ decision-making process in preliminary references and the relevant guidelines and exceptions; procedures in the Court of Justice for dealing with preliminary references under Article 267 TFEU; and the effects of a preliminary ruling.
8. EU liability in damages
Authors: Berry Elspeth , Bogusz Barbara , Homewood Matthew , Strecker Sophie
Published: September 2022

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 focuses on the non-contractual liability of the EU for damages. The discussions cover the jurisdiction of the EU Courts; the meaning of ‘general principles common to the laws of the Member States’; wrongful acts by EU institutions; actual damage; causation; the relationship between actions for damages against the EU and actions for damages against Member States; and the relationship between actions for damages against the EU and actions against it for annulment of EU law.
9. Human rights in the European Union
Authors: Berry Elspeth , Bogusz Barbara , Homewood Matthew , Strecker Sophie
Published: September 2022

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 begins with a brief history of human rights protection in Europe, including the separate role of the Council of Europe and the ECHR, as well as that of the EU and EU law. It then discusses the development of human rights protection by the EU; the need for human rights protection against the EU and its Member States; the Charter of Fundamental Rights of the EU; the enforcement of human rights in EU law; and the possibility of EU accession to the ECHR.
10. Free movement of goods
Authors: Berry Elspeth , Bogusz Barbara , Homewood Matthew , Strecker Sophie
Published: September 2022

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 principle of the free movement of goods in the context of the internal market. It covers the stages of economic integration; the principle of non-discrimination; the main Treaty provisions governing the free movement of goods; the meaning of ‘goods’; Article 30 TFEU: the prohibition of customs duties and charges having equivalent effect; charges for services rendered; Article 110 TFEU: the prohibition of discriminatory taxation; and Articles 34 and 35 TFEU: the prohibition of quantitative restrictions and measures having equivalent effect. This chapter also considers Treaty and case law-based derogations from free movement rules including Article 36 TFEU, Cassis de Dijon, and Keck v Mithouard. Finally, this chapter explores a potential new category of measures having an equivalent effect.
13. Competition law: Article 101 TFEU
Authors: Berry Elspeth , Bogusz Barbara , Homewood Matthew , Strecker Sophie
Published: September 2022

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 focuses on Article 101(1) TFEU, which prohibits agreements between undertakings, decisions by associations of undertakings, and concerted practices that may affect trade between Member States, and which have as their object or effect the prevention, restriction, or distortion of competition within the internal market. All three elements must be satisfied to establish a breach of Article 101(1). This chapter also considers the implications of the new Commission Notice on Agreements of Minor Importance (de minimis) (2014), as well as Brexit.
16. Brexit
Authors: Berry Elspeth , Bogusz Barbara , Homewood Matthew , Strecker Sophie
Published: September 2022

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 Brexit, and in particular the EU–UK Withdrawal Agreement, the Political Declaration setting out the framework for the future relationship between the EU and the UK, the EU–UK Trade and Cooperation Agreement, and the UK’s own domestic legislation corresponding to these, the EU Withdrawal Act 2018 and the Future Relationship Act 2020. These instruments set out the basis for the future legal and trade relationship between the UK and the EU now that the UK is no longer an EU Member State.
2. Sources of international law
Authors: Hernández Gleider
Published: September 2022

This chapter discusses the sources of international law. International law’s authority is generally regarded as deriving from the consent of States. As such, it is only pursuant to State consent that international legal rules can be developed. This is not to say that all international law is made by States; States frequently delegate lawmaking authority to specific bodies or organs, and they may acquiesce or consent to a legal rule which originated in a non-State institution. The chapter then considers Article 38 of the Statute of the International Court of Justice. Technically, Article 38 of the ICJ Statute only lays out the categories of sources to be applied by the ICJ: its lex arbitri or applicable law. Yet, in practice, Article 38 has long been regarded as an authoritative, complete statement as to the sources of international law.
5. States as subjects of international law
Authors: Hernández Gleider
Published: September 2022

This chapter focuses on the nature of the State and the criteria for statehood. International law evolved to regulate the relationships between the communities that became known as States, and it is States that remain the plenary subjects of international law. In any event, under international law it is States that possess full, objective legal personality, endowing them with full legal capacity with respect to rights, powers, and obligations within that legal system. Within international law, these include, inter alia: the ability to appear before international tribunals or national tribunals in order to enforce rights under international law; to be subject to obligations under international law; to make binding international agreements (treaties); and to enjoy some or all immunities. Conversely, other entities regarded as subjects under international law, whether individuals or national liberation movements, have come to be regarded as having international personality only through conferral or recognition by States.
10. State responsibility
Authors: Hernández Gleider
Published: September 2022

This chapter illustrates the concept of responsibility in international law. Within international law, the term ‘responsibility’ has long been understood to denote how fault or blame is attributable to a legal actor for the breach of an international legal obligation. State responsibility remains the archetypal and thus most developed form of international responsibility. Nevertheless, other international actors apart from States may also bear rights and obligations under international law. The result of such capacity is the potential to bear responsibility for a breach of an international legal obligation. International law also provides for what are termed ‘circumstances precluding wrongfulness’, through which an act which would normally be internationally wrongful is not deemed as such. In such situations, international responsibility is not engaged. These are akin to defences or excuses in municipal legal orders.
13. Enforcement short of force
Authors: Hernández Gleider
Published: September 2022

This chapter focuses on enforcement short of force in international law, particularly studying countermeasures, the primary measures available to States in order to induce compliance of wrongdoers with their international obligations. In the last decades, there has been the codification and attempted development by the ILC, in the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), of an international regime regulating countermeasures. To characterize an act as a ‘countermeasure’ is to concede its illegality in normal circumstances: by definition, countermeasures are acts which are ‘intrinsically unlawful, but are justified by the alleged initial failing to which they were a response’. Countermeasures may not in any case involve the use of armed force. The chapter also discusses the category of reprisals, the so-called ‘acts of retorsion’, and sanctions.
2. Agreement
Authors: Chen-Wishart Mindy
Published: September 2022

How does contract law determine whether the parties have committed to the contract and what each has committed to? This chapter discusses: the primacy of the objective test of intentions; the offer and acceptance test of agreement and what happens when one party appears to be mistaken about what is in the contract; when an offer is terminated so that any purported acceptance is ineffectual; assessment of the mirror image approach; the requirement of certainty; the nature of the requirement of intention to create legal relations; and the law’s approach to the benefits conferred in anticipation of contracts that do not materialise.
6. Mistake
Authors: Chen-Wishart Mindy
Published: September 2022

A party who enters a contract because of a mistaken assumption as to background fact can realistically complain that she should not have to take the normal responsibility for her apparent consent. On the other hand, the objective test of intentions renders mistakes irrelevant to the validity of contracts. The chapter explores how contract law balances these competing norms. It discusses: (1) when a claimant can escape a contract due to her unilateral mistake as to: the contractual terms, the nature of the document, or the other party’s identity; (2) when a contract be rectified to correct a mistake in recording it; (3) when a claimant can escape a contract on the ground of her mistaken assumption about the relevant (non-term) facts; (4) the justification for relieving mistake; (5) whether the current law is satisfactory, and if not, how might it be developed.
8. Duress
Authors: Chen-Wishart Mindy
Published: September 2022

The doctrine of duress allows a complainant to set aside the contract if the other party exerted illegitimate pressure on her to enter the contract. This chapter discusses: (1) the justification for the duress doctrine; (2) the elements that must be proved for duress to the person, to property, economic duress, and lawful act duress; (3) the sorts of pressures regarded as illegitimate by the law; (4) the necessary effect of the illegitimate threat on the other party; (5) whether the current law on duress is satisfactory, and if not, how it might be developed in the future; and (6) the protection of consumers against aggressive commercial practices.
9. Unfairness: undue influence, non-commercial guarantees, unconscionable bargains
Authors: Chen-Wishart Mindy
Published: September 2022

This chapter examines three doctrines that allow a party to set aside a contract: (1) undue influence, which deals with the abuse of relationships of trust and confidence; (2) a doctrine protecting non-commercial parties who guarantee another’s debts; and (3) unconscionable bargains, which deals with the exploitation of bargaining weaknesses. It discusses: (i) the justification for these doctrines; (ii) the burden of proof for undue influence, unfair non-commercial guarantees, and unconscionable bargains; (iii) how each element of the respective burdens of proof is satisfied; and (iv) whether the law is satisfactory, and if not, how it might be developed in the future.
10. Identifying and interpreting contractual terms
Authors: Chen-Wishart Mindy
Published: September 2022

This chapter examines how the contract terms that bind the parties are identified and interpreted. It also considers the special problems arising from standard form contracts. We will see how words or conduct that generate expectations are classified into terms within the contract or mere representations outside the contract, with very different remedial consequences; how express terms can be augmented by implied terms and collateral terms; how terms that are often unread (eg in standard form contracts) are made enforceable by signature, reasonable notice, previous dealing, or custom; how terms are interpreted; and, in particular, how troublesome clauses that exclude or limit liability are interpreted.
12. Breach of contract and termination
Authors: Chen-Wishart Mindy
Published: September 2022

This chapter examines breach of contract and the remedy of termination. It discusses: (1) what constitutes breach of contract; (2) the types of breach that will entitle a claimant to elect whether to end (terminate) the contract and sue for damages; namely, conditions and innominate terms the breach of which deprive the claimant of substantially the whole benefit expected under the contract; (3) how terms are classified into conditions, warranties, and innominate terms; (4) the nature and effect of terminating a contract; (5) when the claimant can insist on continuing with performance (affirmation) when the defendant does not want to perform the contract; and (4) the additional special remedies available to consumers in certain cases.
13. Damages
Authors: Chen-Wishart Mindy
Published: September 2022

Where the parties have not agreed on the consequences of breach or any agreed remedies are unenforceable, the default is that the aggrieved party is always entitled to expectation damages for breach of contract. This chapter discusses: (1) the types of loss recognised by contract law and so compensable for breach of contract; (2) how loss is calculated; (3) when contract law allows departures from the expectation measure and allows awards claims based on reliance, restitution, account of profits, or loss of opportunity to bargain (negotiating damages); and (4) when consumers have the right to a price reduction.
15. Good faith
Authors: Chen-Wishart Mindy
Published: September 2022

English law does not currently recognise a duty of good faith, but whether it should in the specific context of contractual performance, or in contract generally, has attracted increasing discussion in case law and commentaries. In addition, good faith informs a diverse range of legal doctrines and principles. This chapter discusses: (1) the meaning of good faith; (2) the pros and cons of recognising good faith; (3) three different models of good faith; (4) the nature of good faith; (5) the taxonomy of good faith in current contract law; and (6) the difference that recognition of good faith might make to various aspects of the law.
1. Understanding the Law
Authors: Holland James , Webb Julian
Published: September 2022

This chapter introduces some fundamentals that will underpin the understanding of law and ‘legal method’. It explains those core principles and techniques that underpin the process of legal reasoning. Topics discussed include the concept of law; functions of law, and the concept of regulation, which extends our understanding of law to include forms of delegated legislation and ‘soft’ law, and case law as it is developed by the courts. The chapter also discusses Parliament and legislation as a source of law; the structure and role of the courts; the importance of procedural law; the role of facts in legal decision-making; English law and the European Convention on Human Rights; and English law and the European Union.
2. Finding the Law
Authors: Holland James , Webb Julian
Published: September 2022

This chapter introduces the main resources and techniques needed for legal research, the development of legal ‘information literacy’, and the appropriate methods to undertake research: the capabilities necessary for learning and working in an information-rich, digital society. It demonstrates how digital technologies are changing the nature of law and legal information from physical to a virtual space, and with it the research process. Digital media have created new challenges, for example for intellectual property law, for data security and protection, and for the criminal law in responding to a wide range of electronic crime. The discussion of specific research tools and techniques covers literary sources; case law; legislation; EU law; and using a number of online resources.
3. Reading the Law
Authors: Holland James , Webb Julian
Published: September 2022

This chapter focuses on an important dimension of legal information literacy: the ability to read critically and with understanding. It provides a set of concepts and tools to help students better understand both primary and secondary legal sources and lays out the three questions that we may ask about a legal text: what kind of law is it; how does it affect existing law; and why was it made? It first explains two kinds of legislation: UK Acts of Parliament; and EU Regulations and Directives. The chapter then looks at the form of English reports and European Union cases. This is followed by a discussion of how to read legal books and articles.
9. ‘Bringing Rights Home’: Legal Method and the Convention Rights
Authors: Holland James , Webb Julian
Published: September 2022

In the twenty-first century, two important pan-European forces to which English law has been subject are the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA) 1998. This chapter discusses the following: the scope, outline, and enforcement of the ECHR to identify and protect fundamental human rights and freedoms and the balancing of these freedoms against the sovereignty of Parliament; its incorporation into the HRA 1998; incorporation under the devolution Acts; the consequences for legal method; and practical and conceptual issues raised by the HRA 1998 around legal research and argumentation. It closes by looking at the prospects of a ‘British Bill of Rights’.
6. Constitution
Authors: Penner J E
Published: September 2022

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. A trust is fully set up, or constituted, only when the property is in the hands of a person who is properly bound to be a trustee. The issues that arise concerning the constitution of trusts are closely tied up with equity’s general principles for dealing with gifts. This chapter begins by discussing an important guiding principle of the court of equity. The principle has two main strands: equity will not enforce gratuitous promises; and equity will not perfect an imperfect gift. The focus then turns to covenants, covering the enforcement of covenants to settle by equity and enforcement of covenants to settle at common law. Cases relating to the fortuitous vesting of the trust property are also analysed.
8. The trust up and running
Authors: Penner J E
Published: September 2022

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses the powers and obligations of trustees, the most important of which are the duty of investment and the powers of maintenance and advancement. The power of maintenance enables a trustee to spend income, but not capital, for the benefit of infant beneficiaries. The power of advancement is the power to expend the capital of the trust fund to benefit a beneficiary who has only a future or contingent interest in it. The discussions also cover the delegation of trustee functions; the appointment, retirement, and removal of trustees; custodian, nominee, managing, and judicial trustees; and variation of trusts.
9. Formalities and secret trusts
Authors: Penner J E
Published: September 2022

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. The law sometimes imposes a requirement on the form of legal transactions before it will regard those transactions as valid, provable, or enforceable in court, typically a requirement that the transaction be made or recorded in writing. This chapter first discusses the formality that applies when creating a trust. It then turns to the formality for the transfer, assignment, or disposition of already existing equitable interests, that is, the existing rights of beneficiaries under a trust. It considers the specific provisions of the Wills Act 1837 that apply to trusts. In particular, it looks at secret and half-secret trusts—testamentary trusts that fail to comply with the Wills Act.
3. Breach of duty
Authors: Brennan Carol
Published: September 2022

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. The first step in establishing a negligence claim is to prove that the defendant owed the claimant a duty of care. The claimant must then show that the defendant has been negligent, that is, has breached that duty. To determine negligence, one must therefore establish how the defendant ought to have behaved in the circumstances (that is, standard of care) and whether the defendant’s behaviour fell below the desired standard (that is, breach). The basic standard of care in negligence is objectively assessed: that of the reasonable man. The objective standard can at times appear to work particularly harshly against a defendant, as exemplified by the case Nettleship v Weston (1971). This chapter examines breach of duty and the standard of care, the proof of negligence, and the application of the maxim res ipsa loquitur. It also discusses the Compensation Act 2006 which addresses the problem of the so-called compensation culture.
13. Rylands v Fletcher
Authors: Brennan Carol
Published: September 2022

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. Rylands v Fletcher was an 1868 case that gave birth to a rule imposing strict liability for damage caused by the escape of dangerous things from land. The tort in Rylands v Fletcher differs from nuisance because it does not consider the involvement of the defendant in a continuous activity or an ongoing state of affairs. What distinguishes Rylands v Fletcher from actions in negligence is that there is no need for the existence of a duty of care and its breach, along with the questionable place of personal injury as an actionable type of damage. This chapter examines the tort in Rylands v Fletcher and the nature of the rule that arose from it. It also considers recent case law developments concerning Rylands v Fletcher and their impact on the current state of the law. Finally, the chapter evaluates the defences pertaining to Rylands v Fletcher.
5. Murder and voluntary manslaughter
Authors: Monaghan Nicola
Published: September 2022

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. This chapter explores the elements of murder and the partial defences which reduce a defendant’s liability to voluntary manslaughter. Murder is a common law offence that is committed when a defendant unlawfully causes the death of a person with an intention to kill or cause grievous bodily harm (GBH). Where a defendant has both the actus reus and mens rea for murder, but also has one of three special, partial defences available to him, his liability for murder is reduced to that of manslaughter (voluntary manslaughter). Loss of control, diminished responsibility, suicide pact, and infanticide are also discussed.
12. Drugs offences
Authors: Monaghan Nicola
Published: September 2022

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. This chapter discusses the main drugs offences found under the Misuse of Drugs Act 1971. It begins with a discussion of the offence of possession of a controlled drug, and examines the meaning of the terms ‘possession’ and ‘controlled drug’, before exploring defences to specific drug offences. It considers the offences of possession of a controlled drug with intent to supply that drug to another, production of controlled drugs, supply of controlled drugs, and the offence of an occupier or someone concerned in the management of premises knowingly permitting the premises to be used for certain drug-related activities. Finally, it explores proposals to criminalise the use of ‘legal highs’.
5. Homicide
Authors: Herring Jonathan
Published: September 2022

This chapter discusses homicide in the criminal law, which can be divided into the following categories: murder, manslaughter, infanticide, and a number of specific offences concerned with causing death while driving—with the first two categories being by far the most important. It considers suicide pacts, mercy killing, and euthanasia; homicide statistics; non-homicide killings; and diminished responsibility. Significant academic and political energy is put into homicide law, considering the relatively few homicide offences that take place each year. What this reveals is that the law’s approach to homicide has great symbolic importance in both political and legal terms.
6. Non-Fatal Non-Sexual Offences Against the Person
Authors: Herring Jonathan
Published: September 2022

This chapter discusses a wide range of offences against the person: from an unwanted touching on an arm to a life-threatening attack. Key to the law is the right to bodily integrity: a person should not be touched against their wishes. This right is protected under the common law and Article 8 of the European Convention on Human Rights. Topics covered include assault and battery; assault occasioning actual bodily harm; malicious wounding; wounding with intent; poisoning; racially and religiously aggravated crimes; the Protection from Harassment Act 1997; threats offences; strangulation and coercive control; transmitting disease; consent and assault; the true nature and extent of violent crime; the nature of an assault; objections to and reform of the Offences Against the Person Act 1861; and emotional and relational harm.
7. Sexual Offences
Authors: Herring Jonathan
Published: September 2022

This chapter considers the offences of rape and sexual assault. It begins with a discussion of the law on sexual offences, covering the perpetrators and victims of rape; assault by penetration; causing sexual activity without consent; sexual offences designed to protect children; offences against those with a mental disorder; prostitution and trafficking; and incest. The second part of the chapter focuses on the theory of sexual offences and sexual crimes; statistics on rape; the nature of rape; consent and sexual activity; the mens rea for rape; and the actus reus of rape.
The Modern Law of Evidence
Authors: Keane Adrian , McKeown Paul
Published: September 2022

The Modern Law of Evidence is a comprehensive analysis of the law of criminal and civil evidence and the theory behind the law. It identifies all the key issues, emphasizes recent developments and insights from the academic literature, and makes suggestions for further reading. The work begins with a definition of evidence and the law of evidence and an outline of its development to date. It then describes and analyses the key concepts, such as the facts open to proof, the forms that evidence can take, relevance, admissibility, weight, and discretion. It then proceeds to cover in a logical sequence all aspects of the subject: the burden and standard of proof, proof of facts without evidence, documentary and real evidence, witnesses, examination-in-chief, cross-examination and re-examination, corroboration and care warnings, visual and voice identification, evidence obtained by illegal or unfair means, hearsay, confessions, adverse inferences from an accused’s silence, evidence of good and bad character, opinion evidence, public policy, privilege, and the admissibility of previous verdicts.
3. The burden and standard of proof
Authors: Keane Adrian , McKeown Paul
Published: September 2022

This chapter discusses the rules governing which party bears the legal and evidential burdens on which facts in issue. These rules can determine the eventual outcome of proceedings; determine which party has the right to begin adducing evidence in court; in what circumstances a defendant, at the end of the case for the prosecution, or claimant, may make a successful submission of no case to answer; and how the trial judge should direct the jury. The chapter begins by defining and distinguishing the legal, evidential, and other burdens, and then considers in detail which burden is borne by each of the parties on the various facts in issue in any given case. The chapter also considers the standard of proof in criminal proceedings where the burden is on the prosecution and on the accused. The standard of proof in civil proceedings is also considered.
6. Witnesses
Authors: Keane Adrian , McKeown Paul
Published: September 2022

This chapter discusses the following: (i) the competence and compellability of witnesses (including the special rules that apply in the case of the accused, the spouse or civil partner of an accused, persons with a disorder or disability of the mind, the Sovereign, diplomats, and bankers); (ii) oaths and affirmations; (iii) the use of live links; (iv) the time at which evidence should be adduced; (v) witnesses in civil cases (including the witnesses to be called and the use of witness statements); (vi) witnesses in criminal cases (including the witnesses to be called, the order of witnesses, evidence-in-chief by video recording and special measures directions for vulnerable and intimidated witnesses); (vii) witness anonymity; and (viii) witness training and familiarization.
7. Examination-in-chief
Authors: Keane Adrian , McKeown Paul
Published: September 2022

The questioning of witnesses, which generally falls into three stages known as examination-in-chief, cross-examination, and re-examination, is central to the English adversary system of justice. This chapter focuses on the first stage, examination-in-chief. In this stage the party calling a witness, or counsel on his behalf, will seek to elicit evidence that supports his version of the facts in issue. The discussions cover young and vulnerable witnesses; the rule against leading questions and the exceptions to the rule; refreshing the memory in court and out of court; the rule against previous consistent or self-serving statements and the common law exceptions to the rule (complaints in sexual cases, statements admissible to rebut allegations of recent fabrication, statements made on accusation, previous identification, statements admissible as part of the res gestae and statements in documents used to refresh the memory and received in evidence); and unfavourable and hostile witnesses.
10. Visual and voice identification
Authors: Keane Adrian , McKeown Paul
Published: September 2022

This chapter considers the risk of mistaken identification, and the law and procedure relating to evidence of visual and voice identification. In respect of evidence of visual identification, the chapter addresses: the Turnbull guidelines, including when a judge should stop a case and the direction to be given to the jury; visual recognition, including recognition by the jury themselves from a film, photograph, or other image; evidence of analysis of films, photographs, or other images; pre-trial procedure, including procedure relating to recognition by a witness from viewing films, photographs, either formally or informally; and admissibility where there have been breaches of pre-trial procedure. In respect of evidence of voice identification, the chapter addresses: pre-trial procedure; voice comparison by the jury with the assistance of experts or lay listeners; and the warning to be given to the jury (essentially an adaption of the Turnbull warning, but with particular focus on the factors which might affect the reliability of voice identification).
19. Evidence of character: evidence of bad character in criminal cases
Authors: Keane Adrian , McKeown Paul
Published: September 2022

This chapter begins with an introduction to the statutory framework governing the admissibility of bad character evidence. It goes on to consider the statutory definition of ‘bad character’ and to discuss the admissibility of evidence of bad character in criminal cases under the Criminal Justice Act 2003, namely: the admissibility of the bad character of a person other than the defendant and the requirement of leave; the admissibility of evidence of the bad character of the defendant under various statutory ‘gateways’, including the gateway by which evidence may be admitted if it is relevant to an important matter in issue between the defendant and the prosecution; and safeguards including the discretion to exclude evidence of bad character and the judge’s power to stop a case where the evidence is contaminated. Procedural rules are also considered, as is the defendant’s right to challenge evidence of bad character.
23. Admissibility of previous verdicts
Authors: Keane Adrian , McKeown Paul
Published: September 2022

This chapter examines the circumstances in which a verdict is admissible in subsequent proceedings as evidence of the facts on which it was based. It analyses the rule in Hollington v Hewthorn & Co Ltd, which has been widely criticized, that judgments are not admissible as evidence of the facts on which they are based. Its effect, in both civil and criminal proceedings, has been largely removed by the Civil Evidence Act 1968 and the Police and Criminal Evidence Act 1984, respectively. Concerning civil proceedings, consideration is given to previous convictions generally, previous convictions in defamation proceedings, previous findings of adultery and paternity, previous acquittals, and other previous findings. Concerning criminal proceedings, consideration is given to previous convictions of the accused, previous convictions of persons other than the accused, and previous acquittals.
5. Involuntary and corporate manslaughter
Authors: Loveless Janet , Allen Mischa , Derry Caroline
Published: September 2022

This chapter examines the provisions of criminal law for involuntary manslaughter in England and Wales, explaining that involuntary manslaughter may be caused by recklessness, gross negligence, or unlawful and dangerous acts. It considers other homicide-related offences such as infanticide and causing death by dangerous, careless, or inconsiderate driving, and analyses court decisions in several cases. The chapter explains the principle of corporate liability, highlighting problems in prosecuting a corporation for a serious crime, and explains the key provisions of the Corporate Manslaughter and Corporate Homicide Act (CMCHA) 2007 in England and Wales. It also provides several examples of relevant cases and analyses the bases of court decisions in each of them.
12. Inchoate offences
Authors: Loveless Janet , Allen Mischa , Derry Caroline
Published: September 2022

This chapter examines different types of inchoate offences in England and Wales, which include attempt, conspiracy, and encouraging or assisting. It explains the conditions of liability for these offences, discusses the relevant provisions of the Serious Crime Act 2007, clarifies the general principles of these offences, and identifies their actus reus and mens rea elements. It also explores and clarifies the difference between these offences. The chapter discusses the three offences that replace the common law offence of incitement which apply to one who ‘facilitates’ another’s offence. Examples of relevant cases and analyses of court decisions in each of them are also provided.
1. Introduction
Authors: McKendrick Ewan
Published: September 2022

This introductory chapter begins by setting out the book’s three principal aims: to provide an exposition of the rules that make up the law of contract, to explore the law of contract in its transactional context, and to explore English contract law from a transnational and comparative perspective. The discussions then turn to the scope of the law of contracts; the growth in the use of standard form contracts and the increasing complexity of the form and the content of modern contracts; transnational contract law; and conflicting policies that underpin the law of contract.
4. Uncertain and Incomplete Agreements
Authors: McKendrick Ewan
Published: September 2022

The parties to agreements sometimes express themselves in terms that are vague, incomplete, or uncertain. The courts have experienced considerable difficulty in deciding whether or not an agreement has been expressed in a form that is sufficiently certain for them to enforce. On the one hand, judges generally do not wish to be seen to be making the contract for the parties, and on the other hand, are reluctant to deny legal effect to an agreement that the parties have apparently accepted as valid and binding. The result has been a degree of tension in the case-law. This chapter examines two groups of cases. The first group consists of cases in which it was held that the agreement was too uncertain or too vague to be enforced, while the second comprises a number of cases in which the courts have concluded that the agreement was valid and binding.
5. Consideration and Promissory Estoppel
Authors: McKendrick Ewan
Published: September 2022

The doctrine of consideration is one feature of English contract law that readily distinguishes it from the law of contract in civilian jurisdictions. Its essence is that a promisee cannot enforce a promise unless he has given or promised to give something in exchange for the promise, or unless the promisor has obtained (or been promised) something in return. In other words, there must have been a bargain between the parties. This chapter analyses the current scope of the doctrine of consideration, particularly the rule that consideration must be sufficient but need not be adequate; the pre-existing duty rule and the question whether a promise to pay, or part payment of a debt, is good consideration for the discharge of the entire deb; and the rule that past consideration is not good consideration. It also examines the role of promissory estoppel in contract cases. An estoppel gives (at least limited) effect to a promise that would otherwise be unenforceable (it may be used as a shield but not a sword), thus the effect of an estoppel may be to supplement, or even supplant, the doctrine of consideration. The chapter concludes with a brief discussion of the future of the doctrine of consideration and, in particular, draws on the critique of consideration developed by Professor Atiyah.
6. Formalities
Authors: McKendrick Ewan
Published: September 2022

Requirements of form (such as writing) are not as important today as they were in the past. As a general rule, contracts can be made in any form and can be proved by any means, although there remain exceptional cases where the law does insist upon requirements of form. This chapter, which considers the reasons for continued reliance upon requirements of form, along with the criticisms levelled against such requirements, begins by explaining why legal systems impose formal requirements upon contracting parties. It then outlines the formal requirements in English contract law, followed by a discussion of the future of formal requirements, including deeds, noting the distinction between cases where the contract must be made in writing and cases in which contracts must be evidenced in writing.
9. Incorporation of Terms
Authors: McKendrick Ewan
Published: September 2022

This chapter discusses the incorporation of terms into a contract. Three principal options are available to ensure the incorporation of terms, the first of which is to make sure that the other party to the contract signs the document that contains all the relevant terms. A party is generally bound by terms he has signed, whether or not he has read them. The second option is to take reasonable steps to bring the terms to the notice of the other party. In order to be effective the notice must have been given at or before the time of contracting, in a document that was intended to have contractual effect, and reasonable steps must have been taken to bring the terms to the attention of the other party. The third option is incorporation by course of dealing or by custom. In order to constitute a ‘course of dealing’ there must have been a series of transactions between the parties that was both ‘consistent’ and ‘regular’.
11. The Interpretation of Contracts
Authors: McKendrick Ewan
Published: September 2022

This chapter focuses on the principles applied by the courts when interpreting contracts. It examines the development of the modern law and focuses on three re-statements of the principles applied by the courts. The first is to be found in the judgment of Lord Hoffmann in Investors Compensation Scheme Ltd v. West Bromwich Building Society, the second is set out in the judgment of Lord Neuberger in Arnold v. Britton, and the third in the judgment of Lord Hodge in Wood v. Capita Insurance Services Ltd. The chapter discusses the scope of these principles (in particular, the ‘factual matrix’, the exclusion of pre-contractual negotiations, the meaning of words, ‘corrective interpretation’, and the balance to be struck between the natural and ordinary meaning of the words and giving to the words a commercial sensible construction).
18. Duress
Authors: McKendrick Ewan
Published: September 2022

A contract can be set aside on the ground that it has been entered into under duress. This chapter presents cases illustrating the different forms of duress, namely duress of the person, duress of goods, and economic duress. The case-law establishes that there are two principal elements to a duress claim: (i) lack of consent/coercion of the will and (ii) the illegitimacy of the pressure exerted. There is a third element necessary in cases of economic duress, namely the lack of a reasonable alternative to giving in to the pressure or the threat. The chapter examines the idea of ‘illegitimacy’, in particular whether a threat to breach a contract is always illegitimate and the controversial question of the scope of ‘lawful act’ duress.