bluuebunny/crossref_metadata_2025 huggingface dataset:
Diversion under the Mental Health Act 1983 and Related Provisions
Authors: Laing Judith M
Published: November 2023

This chapter will consider the various ways with which a mentally disordered offender comes into contact with the criminal justice system and the legal powers that are in existence at its various stages to divert him/her into therapeutic care. These are principally contained in the Mental Health Act 1983 and a few related provisions1 and the operation and implementation of these powers throughout the 1980s will be outlined. Consideration will also be given here to the relevant legal powers under under the Crime (Sentences) Act 1997. The Act was introduced subsequently to the introduction of an explicit diversion policy in 1990; however, it does introduce a new disposal power-the hospital direction-in relation to some mentally disordered offenders, and it is therefore significant as it facilitates access to hospital care. It will be shown that the 1983 Act ‘embodies the principle of treatment of mentally disordered offenders instead of punishment ‘ ,2 and so the intention was to ensure that those in need of care and treatment should receive it from the health and social services. However, as the 1980s progressed, it became clear that the powers were not being effectively nor adequately implemented-too few mentally disordered offenders were being routed to psychiatric care and too many were finding their way into prison. This prompted the 1979-97 Conservative Government to take action by introducing an explicit diversion policy at the beginning of the 1990s. The problems that exist with these provisions will there fore be fully explored, thereby allowing consideration in succeeding chapters of whether the introduction of this formal diversion policy and assessment and diversion schemes, particularly in West Yorkshire, has provided a solution to the deficiencies and succeeded in ensuring access to therapeutic care, where, in the past, these powers have sadly failed.
The Development of Diversion Policy for Mentally Disordered Offenders
Authors: Laing Judith M
Published: November 2023

Previous chapters have shown that mentally disordered offenders merit special care and treatment and should therefore, wherever possible, receive it from the health and social services. Diversion policy aims to secure adequate and appropriate medical care for mentally disordered offenders by diverting them out of the criminal justice system. This chapter documents the introduction and development of diversion policy in this country describing its general implementation nationally. The problems and practicalities which have been encountered will also be highlighted as they will be relevant to the consideration of the implementation of diversion policy specifically in West Yorkshire in Ch. 5. It has already been identified in the preceding chapter how the Mental Health Act 1983 principally provided the courts with a range of flexible therapeutic powers of disposal. So mechanisms already existed within the legislation to divert the mentally disordered out of the criminal justice system and away from traditional penal disposals. But, as the 1980s progressed, it became evident that diversion was not being achieved in many cases as the powers were not being used to their full potential. This failing had been observed by several prominent bodies and committees who expressed their concerns that far too many mentally disordered offenders were being remanded and sentenced to periods of imprisonment when what they really needed was care, supervision, and treatment.
Diversion in West Yorkshire: A Process Study
Authors: Laing Judith M
Published: November 2023

Against the background of developments outlined in the previous chapter, the nettle of diversion was grasped in the West Yorkshire area, and there are six varying court-based projects operating within the five petty sessional divisions in the region. Taken as a whole, this represents comprehensive court diversion arrangements in West Yorkshire, and is clearly in line with official policy in terms of seeking to improve inter-agency working and increasing the opportunities for access to appropriate therapeutic care for mentally disordered offenders. This chapter, which is based upon empirical research conducted in West Yorkshire, outlines the process of development of each of these diversion schemes, from the early stages of their conception to their implementation and subsequent operation. This is not a simple process, and is often thwarted by financial constraints, inadequate service provision, and, particularly, the difficulties in achieving inter-agency co-operation. In this respect, the process of diversion schemes will be considered and those in operation will be assessed in relation to the extent to which they have succeeded in overcoming these obstacles. Not only will the specific local initiatives be considered, but also the region-wide developments which have been taking place in the wake of Circular 66/90 and the Reed Committee report. A brief note on the research methodology is outlined below, followed by an empirical account of the process of the diversion schemes.
Conclusion
Authors: Laing Judith M
Published: November 2023

In a recent study of the mental health of the nation, it was estimated that 1 adult in every 7 suffers from depression, anxiety, or some other form of mental disorder. This suggests that approximately 6 million people in Britain have some kind of mental health problem, which requires care, treatment, or support.2 Even more alarming is the fact that the latest Department of Health Statistics reveal that 1 adult in 4 will suffer from some form of mental illness at some stage in his or her life. These figures clearly indicate the extent of the problem. Of course, not all these people are necessarily mentally disordered offenders, but there is a real danger for a few that if their conditions are left untreated and they do not receive the help they need, they may deteriorate and that could lead to tragicconse quences for the individuals themselves, as Ben Silcock ‘s parents would claim, or, in Jayne Zito ‘s eyes, for their victims. It is therefore crucial that steps are taken to minimize this danger and ensure that appropriate treatment and support is provided. The main aim of this book has been to examine the process of diversion of mentally disordered offenders from the criminal justice system, which is one step that has been taken to seek to solve the problem and provide some of these people with the help that they need and to which they are entitled.
The Regulatory Framework
Authors: McMeel Gerard , Virgo John
Published: November 2023

The decision to create a single consolidated financial services regulator was a swift 4.01 response to the scandals of the 1990s by the new Labour administration which took office in May 1997. In a statement to the House of Commons on 20 May 1997 the new Chancellor of the Exchequer, Gordon Brown, announced that he was taking away from the Bank of England its traditional role of banking supervisor. A radical overhaul of financial regulation was announced.
Financial Products
Authors: McMeel Gerard , Virgo John
Published: November 2023

This chapter introduces the main types of financial services offered, and in particular the main types of financial products retailed in the United Kingdom. The list of products is indicative and non-exhaustive. In any event, such a list could never aspire to be complete given the dynamic nature of the market and constantly changing regulatory and taxation environment. New products emerge all the time. Older products are marginalized or disappear completely. The late 1990s saw the Individual Saving Account (‘ISA’) replace previous tax-free savings and investment vehicles. The new decade saw the launch of the Stakeholder Pension in April 2001, which now co-exists with personal pension plans and related products. Each new service or product poses regulatory concerns. Some new products may raise worries about the potential for misselling.
The Law of Contract
Authors: McMeel Gerard , Virgo John
Published: November 2023

The private law facility for consensual exchanges, which we term the law of con-8.01 tract, is crucial to the realm of financial services. Financial advice may be proffered pursuant to a contractual arrangement. All financial products owe their existence to an underlying contractual regime. We do not propose to consider contract law generally in so far as it may concern the provision of financial services. Instead it is proposed to survey some important topics which are crucial to financial advice and financial products. First, we consider the circumstances in which a court will decide that financial advice has been proffered under the terms of an applicable contract. In particular, we address the question of whether the doctrine of consideration is satisfied where the adviser is not directly paid by the recipient. Secondly, we advert to some incorporation and implication issues of particular concern in the financial services context.
Causation
Authors: McMeel Gerard , Virgo John
Published: November 2023

In a successful claim to recover compensation for negligent or non-compliant financial advice, the claimant will need to establish that the breach of duty alleged caused losses which were foreseeable.
Implementation of directives
Authors: Prechal Sacha
Published: November 2023

By making the distinction between that which is imperative, i.e. the result to be achieved, and that which is left to the discretion of the Member States, i.e. the choice of form and methods, Article 249(3) indicates what is within the competence of the Community and what remains within the competence of the Member States. It also follows from this Article that the choice is limited to the kind of measures to be taken; their content is entirely determined by the directive at issue. Thus the discretion as far as form and methods are concerned does not mean that Member States necessarily have a margin in terms of policy making.
The role of national courts
Authors: Prechal Sacha
Published: November 2023

The very purpose of directives is their implementation in national law. As a rule, therefore, their provisions should apply within the national legal order in their ‘converted’ form, i.e. as provisions of national law. Whenever the question of effects of directives is addressed, this should be the point of departure. This normal state of affairs was described by the Court of Justice in very clear terms in Becker, where it held that wherever a directive is correctly implemented, its effects extend to individuals through the medium of the implementing measures adopted by the Member State concerned.
inadequate implementation of directives
Authors: Prechal Sacha
Published: November 2023

Non-implementation or incorrect implementation of a directive amounts to a breach of Community law. In so far as this or any other breach of Community law causes loss and damage to individuals, they should be able to bring an action for damages against the Member State concerned in national courts. Yet, State liability in relation to directives has an extra dimension. First, exactly for reasons of being an instrument which in principle needs implementation, the risk that something ‘goes wrong’ is certainly not negligible. Second, the denial of horizontal direct effect of directives poses additional problems to their enforcement and to the judicial protection which liability may palliate to a certain extent.
Regulating Conduct
Authors: Ulph Janet , Tugendhat Sir Michael , Glister James
Published: November 2023

This chapter focuses upon the liability of dishonest directors and other employees and agents; other types of fraud are considered in Chapters 6, 7, and 8. A common fraud is one where a director or senior employee steals from his company because of either personal greed or domestic difficulties, such as a high mortgage coupled with job insecurity. Theft of company property includes not only siphoning of money from company accounts but also the gathering of information relating to client databases, suppliers and profit margins. If an action is brought against a director or other agent or employee, it is a matter of looking at the circumstances to determine whether the particular ingredients of a cause of action in the civil law can be satisfied.
Legal Principles Revisited
Authors: Moore Michal S
Published: November 2023

In a recent article1 Larry Alexander and Ken Kress have returned us to a perennial question of jurisprudence, which is the role of principles in legal reasoning. They rightly remind us, and nicely detail, how Ronald Dworkin’s treatment of principles is foundational of modern treatments of the topic. Dworkin’s persuasiveness here is due to the fact that he recapitulated in his own idiom a position familiar to all lawyers, familiar because of their practice2 and because of earlier descriptions of that practice by such staples of American jurisprudence as Cardozo, Warren and Brandeis, Levi, Wechsler, Langdell, Cohen, Bingham, and Fuller.3
Metaphysics, Epistemology, and Legal Theory
Authors: Moore Michal S
Published: November 2023

In this chapter I shall continue my discussion of Ronald Dworkin’s theory of adjudication.1 More specifically, I discuss two theses that can fairly be attributed to Dworkin. The first is what I shall call the ‘conventionalist thesis’. The conventionalist thesis holds that the truth of a proposition lies in its fit with those explicit or implicit agreements in belief or attitude that one may call conventions. The second thesis is what I shall call the ‘right-answer thesis’, which holds that (on Dworkin’s theory of how judges ought to reason) there will always be a right answer to disputed cases at law, no matter how ‘hard’ the case or ‘undemonstrable’ the conclusion.
Law as a Functional Kind
Authors: Moore Michal S
Published: November 2023

Natural law has for a long time had a bad press. It is supposed to be the sort of spooky stuff that Bentham derided when he hooted at natural rights as not being just simple nonsense, but ‘nonsense on stilts’.1 Oliver Wendell Holmes’s own brand of ethical scepticism and legal positivism led him to characterize the natural law as a ‘brooding omnipresence in the sky’,2 sort of like the northern lights apparently, but without the lights. The prevalence of such views has for some time made it the case that ‘to be found guilty of adherence to natural law theories is a kind of social disgrace’.3
The Interpretive Turn in Modern Theory: A Turn for the Worse?
Authors: Moore Michal S
Published: November 2023

This chapter was originally dedicated to my late friend John Kaplan, whose criticism of interpretivism was even more succinct than that of Michael Devitt or John Searle (to say nothing of the criticism that follows herein).3
Interpreting Interpretation
Authors: Moore Michal S
Published: November 2023

There is a simple life cycle for metaphors: they are born of fresh insight about an unnoticed similarity, wither with overuse, and die by becoming so familiar that they are treated as established senses of words. Intellectual fashions are like metaphors in this respect. Although they may begin life fresh and full of promise, they eventually become the tired counters in a patter that prevents insight rather than conveys it.
Attractiveness of third party procedure for the parties involved and the procedural requirements for bringing third party proceedings in England
Authors: Takahashi Koji
Published: November 2023

As seen in Chapter 4, if a contribution claim has to be tried independently of the trial in another forum of the original claim, there is a risk that issues such as the existence and quantum of the contribution claimant’s liability to the original claimant will be determined inconsistently in the trial of the two claims, which may obstruct recovery on the contribution claim.
Obstruction to third party procedure caused by foreign corresponding proceedings
Authors: Takahashi Koji
Published: November 2023

It will be recalled that we have been considering to what extent the English court can consolidate in one action the trial of a contribution claim with the trial of the original claim by way of third party procedure in a case involving international elements. The procedural and jurisdictional requirements that must be satisfied in order to bring third party proceedings have been examined in Chapters 6 and 7 respectively. This chapter and Chapter 9 will deal with obstructions to third party procedure caused by foreign proceedings corresponding to the original or third party proceedings (this chapter) or by an arbitration agreement or a foreign jurisdiction agreement between the defendant and the third party (Chapter 9).
The application of the same law to a reimbursement claim and the original claim in a chain transaction under the Rome Convention
Authors: Takahashi Koji
Published: November 2023

The cause of the imbalance of liability and the right of reimbursement in such scenarios as illustrated in Chapter 10 can be attributed in part to the substantive rules of the governing laws of the contracts involved.
The application of the same law to a reimbursement claim and the original claim in a chain transaction outside the Rome Convention
Authors: Takahashi Koji
Published: November 2023

This chapter will deal with contracts to which the Rome Convention does not apply and address the same question as the preceding chapter, namely in what circumstances, if any, a reimbursement claim and the original claim in a chain transaction will or should be governed by the same law so that the correspondence of liability and the right of reimbursement will not be upset.
Analytical Summary
Authors: Takahashi Koji
Published: November 2023

This book has examined claims for contribution and reimbursement in an international context mainly from the perspective of the English courts. However, the rules applied by the English courts are, in so far as they are derived from the EC based Conventions, the same as, or very similar to, the law of other European countries. The remaining rules applied by the English courts are based on the common law and will hence be similar to those of other commonwealth countries.
Beginnings, to 325
Authors: Morris Colin
Published: November 2023

The Gospels leave us with a disputed picture of the presence in Jerusalem of Jesus of Nazareth. Mark, Matthew, and Luke do not define the length of his public preaching ministry: the three years traditionally assigned to it rest on a precarious deduction from the text of John. The natural meaning of the text of the first three Gospels is that the ceremonial entry by Jesus into the city a few days before the cruciflxion was his first public appearance there. Luke in particular presented the decision to go to Jerusalem as a major turning-point in the life of Jesus: ‘when the days drew near for him to be received up, he set his face to go to Jerusalem’ (Luke 9: 51).
Consequences of Constantine, 325–50
Authors: Morris Colin
Published: November 2023

In the course of 324, Constantine defeated the Eastern Emperor Licinius at Chrysopolis, and thus united the Roman Empire under his sole rule. Within a few months, he had given instructions for extensive work to be undertaken on the site on the eastern side of the city where Hadrian’s buildings stood. There are three major sources that describe these works, and that go back to Constantine’s own times. The earliest is a letter of Constantine to Bishop Macarius of Jerusalem, quoted by Eusebius in his Life of Constantine and datable apparently to 325–6.
Dissemination: The Spread of Interest in the Holy Sepulchre in Western Europe, 350–600
Authors: Morris Colin
Published: November 2023

It is a curious fact that we hear far more about visitors from the West than from the East. This can hardly be because people were not coming from other regions. We know of pilgrims from Egypt and Cappadocia, and Jerome reported their arrival even from India, Persia, and Ethiopia; John Chrysostom reported that ‘all the world comes to see the Sepulchre which has no body: some power draws those who live in the distant parts of the earth, to see where he was born, where he was buried, where he was crucifled’. Nevertheless reports from Western visitors testify to Latin interest in the Holy Land, and are more abundant than anything similar from Eastern sources.
Latin Jerusalem, 1099–1187
Authors: Morris Colin
Published: November 2023

The capture of Jerusalem by the First Crusade in July 1099 created much closer links than ever before between the West and the Holy Sepulchre. Within twenty-five years, Western dominance had been established over the eastern coast of the Mediterranean, and there were four principalities, of which the kingdom of Jerusalem enjoyed the greatest prestige and importance, controlled by an aristocracy predominantly Frankish or French in culture. Westerners were not at first sure what to call their conquests. They referred to the whole vast enterprise as designed to assist ‘the Asian’ or ‘the Eastern (Oriental) churches’, but this was too imprecise. They searched for other vocabulary.
Prophecy and holy men in early Islam
Authors: Robinson Chase
Published: November 2023

‘To vest a fellow human being with powers and claims to loyalty associated with the supernatural, and especially a human being whose claim was not rendered unchallengeable by obvious coercive powers, is a momentous decision for a society made up of small face-to-face groups to make.’ If the typology of Brown’s holy men has become considerably more complex in the last twenty years or so, their ubiquity in the Mediterranean world has stood the test of time: holy men seem to have impressed themselves on the whole of this world, settled and pastoralist communities alike. Among the latter, the Arabs of the Fertile Crescent were no strangers to Christians and their claims, having come into contact with holy men in a variety of ways: crowding around the base of saints’ towering pillars, camping at Christian shrines, gratefully receiving the curative blessings of itinerant preachers.
The Cult of Saint Thecla
Authors: Davis Stephen J
Published: November 2023

Thecla, a disciple of the apostle Paul, became perhaps the most celebrated female saint and 'martyr' among Christians in late antiquity. In the early church, Thecla's example was associated with the piety of women - in particular, with women's ministry and travel. Devotion to Saint Thecla quickly spread throughout the Mediterranean world: her image was painted on walls of tombs, stamped on clay flasks and oil lamps, engraved on bronze crosses and wooden combs, and even woven into textile curtains. Bringing together literary, artistic, and archaeological evidence, often for the first time, Stephen Davis here reconstructs the cult of Saint Thecla in Asia Minor and Egypt - the social practices, institutions, and artefacts that marked the lives of actual devotees. From this evidence the author shows how the cult of this female saint remained closely linked with communities of women as a source of empowerment and a cause of controversy.
Thecla Devotion Among Ascetic Women in Alexandria
Authors: Davis Stephen J
Published: November 2023

Seleucia in Asia Minor was the hub of the Thecla cult in late antiquity. But, at the same time, interest in the saint also spread quickly throughout the Mediterranean world. By the end of the fifth century CE, Thecla was extolled as an exem- plary virgin and martyr not only in Asia Minor, but also in Italy, Gaul, Germany, North Africa, Armenia, Cyprus, Palestine-Syria,8 and Egypt. Among these regions, Egypt seems to have been an especially fertile ground for the cult of Saint Thecla. At least as early as the fourth century , the traditions surrounding Thecla’s life became known to Egyptian writers and artists. Thecla’s name and image appear on a wide variety of media: Greek and Coptic papyri and parchment manuscripts, limestone grave stelae, wall paintings, textile fragments, wooden combs, terra cotta oil lamps, and pilgrim flasks.
Westminster: Squeezed From Above and Below
Authors: Hazell Robert
Published: November 2023

Even with the creation of regional assemblies and Parliaments, Westminster is likely to remain the main focus of political activity and, in the time frame we are concerned with, its core functions will not disappear. At a rhetorical level, the doctrine of parliamentary sovereignty will almost certainly endure. It has already survived 25 years of European Community (EC) membership, and was strongly reasserted by the Government in the Scottish and Human Rights White Papers. But at a practical level political power will continue to leach upwards to Europe as the European Union (EU) further extends its competence; and downward to the Scottish Parliament and devolved assemblies. This will throw into ever sharper relief the gap between the rhetoric of parliamentary sovereignty and the reality of a more pluralist system in which political power is shared between different levels of government, with Parliament being squeezed from above and below.
Intergovernmental Relations in a Devolved United Kingdom: Making Devolution Work
Authors: Cornes Richard
Published: November 2023

Andrew Welsh MP: ‘There will presumably be a need for co-operation between the Executive in Edinburgh and the Executive in London. One of our witnesses said that “the mechanisms which will facilitate Scottish-UK co-ordination are unclear”. Would you agree?’ This chapter sketches the outline of what will be a significant new aspect of the study of government in the United Kingdom. In federal states intergovernmental relations refers to the interactions between the component governments. The topic is a separate discipline within law and politics. In Australia intergovernmental relations have been described as:
The Constitution Of The United Kingdom
Authors: Brazier Rodney
Published: November 2023

This book seeks to describe and analyse the current working of British central government. It is written from the perspective of a constitutional lawyer who believes that the opinions of Ministers, civil servants, politicians, historians, and other academic writers are as helpful in divining the meaning of the British constitution as the views of those who may be learned in the law. The emphasis is placed on the organization and powers of the government, although two chapters are devoted to Parliament entirely in its own right (rather than as just an adjunct through which governments achieve and retain their authority), and a final chapter considers the constitutional position of the judiciary. As the book is concerned with constitutional and political issues affecting central government, not with detailed administration, the organization of the civil service is omitted.
The Transfer of Power
Authors: Brazier Rodney
Published: November 2023

Before a new Prime Minister or government can take office the outgoing Prime Minister or administration must resign. Such resignations will arise in one of a number of ways. First, if a government is unambiguously defeated at a general election and one opposition party is returned with a majority of seats in the new House of Commons,’ the modern practice is for that government to resign without waiting to meet Parliament. Secondly, a Prime Minister may be forced to quit through illness or old age, or may die in office; or he may voluntarily decide to retire, or he may lose a party Leadership election, there being no question of a change in the party in power. In the last 45 years the Churchill, Eden, Macmillan, Wilson and Thatcher administrations have ended in that way.

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Constitutional Monarchy
Authors: Brazier Rodney
Published: November 2023

The Queen is a symbol of national identity, a focal point of national loyalty, transcending political partisan rivalry. She personifies the state and the nation, their history and continuity. Coronations, royal weddings and funerals, and an investiture of a Prince of Wales are great national occasions. The Queen is also the supreme governor of the Church of England and an exemplar of family life. Wide legal powers are vested m the Queen or Her Majesty in Council. A great many formal acts have to be done by her in a traditional manner and require her personal signature or approval. She also presides at Privy Council meetings and reads the Queen’s Speech at the opening of each new Parliament or parliamentary session. She receives letters of credence from ambassadors and Commonwealth High Commissioners, receives homage from new bishops, and holds some two hundred formal audiences each year.
The House of Lords
Authors: Brazier Rodney
Published: November 2023

At the time of writing the composition of the House of Lords faces radical change. The Labour government has a manifesto commitment to exclude hereditary peers from membership as the first stage towards creating a more democratic second chamber. At the moment, however, membership of the House of Lords consists of the Prince of Wales, hereditary peers, life peers, the Lords Spiritual and the Lords of Appeal in Ordinary. In 1998 there were 767 hereditary peers (including 20 hereditary peeresses) and some 500 life peers (of whom only 88 were women): that potential membership of over 1200 made it easily the largest chamber in any bicameral parliament in the developed world. The hereditary peerage is divided both by rank and by country of origin. Senior by rank are dukes (28 in 1998), followed by marquesses (34), earls (169, plus five countesses in their own right),
The Constitutional Position Of The Judges
Authors: Brazier Rodney
Published: November 2023

In this chapter the constitutional position of all ranks of the judiciary will be explained. The rights and powers of judges, Ministers, and Parliament in relation to each other are not ideal. The extensive powers of two Mimsters over the judiciary are not entirely desirable: in particular, the personal role of the Lord Chancellor is crucial in the appointment, pro motion, and removal of judges. Governments place judges firmly into political questions by using them in extra-judicial inquiries more than is really necessary; conversely, governments have acquiesced in over restrictive parliamentary rules which prevent MPs from adequately discussing the administration of justice and other judicial matters. Behind most of these issues is the question whether there should be reform of the office of Lord Chancellor, possibly involving the creation of a new Department of Law.
Differentiation Between Exclusive Rights and Other Related Concepts
Authors: Buendia Sierra Jose Luis , Read Andrew
Published: November 2023

The concept of special rights referred to in Article 86(1) (formerly Article 90(1)) is one of the most obscure in the Treaty. For a long time it was not even clear whether special rights and exclusive rights were the same thing or not.1 When the Commission had to tackle the question of special rights academic writings offered no solid conclusions and there was no decided case law on the point.
Article 86(1) (Formerly Article 90(1) In Conjunction With The Treaty Rules Addressed To Undertakings
Authors: Buendia Sierra Jose Luis , Read Andrew
Published: November 2023

Article 86(1) (formerly Article 90(1)) is not limited to reminding Member States 5.01 that the prohibitions which the Treaty imposes on them must also be respected as regards public and privileged undertakings. In addition, it also prohibits Member States from adopting or maintaining measures contrary to Articles 81 and 82 (for-merly Articles 85 and 86) of the Treaty, rules which, in principle, are directed at undertakings and not at public authorities.
Change And Continuity
Authors: Gummow W M C
Published: November 2023

This volume is based closely on the lectures delivered by The Hon. Justice W. M. C. Gummow at Oxford University in 1999 as part of the Clarendon law lectures series, sponsored by Oxford University Press. These lectures take up themes of continuity and change in the law, particularly as they appear in the great common law jurisdictions. The tension between continuity and change appears from a consideration of the interaction between statute and the case law which interprets it, of the interaction between equity and statute, and finally of the operation of that constitutional arrangement known as federalism. Statute speaks to the state of affairs at the time of enactment. That state of affairs is dynamic; the statute, at least in form, is static. Conversely, in its development the common law may be informed by changes effected by statute. The extent to which the common law may or should respond in this way is a matter of controversy. Further, the accommodation of an apparently rigid statutory structure to individual circumstances has, for centuries, been assisted by the leavening effect of equitable doctrines and remedies. Finally, in federal systems with a division of governmental power and authority by a written supreme law, tensions between continuity, perceived in terms of original intent, and changed circumstances which were unforeseen, may become acute. Is Britain in the process of becoming a federal state or, indeed, a component of a European federal state? In all these situations, the doctrines developed by the courts assist the passage of society from the past, through the present and into the future. This invites an inquiry, considered in these lectures, as to the requirements of legal scholarship in a court of ultimate appeal in a common law system.
Reforms in the Criminal Process I: The Crown Prosecution Service
Authors: Windlesham Lord
Published: November 2023

The practice of separating the functions of investigating and prosecuting criminal offences is not embedded in any legal principle or procedure. It belongs to a larger complex of law and political decision making characterized by priorities shifting constantly between protecting the general public from the harmful consequences of criminal offending, and safeguarding the civil rights of persons suspected or accused of having committed criminal offences. There is no fixed relationship or coherent balance between the two: they are horses that need to be driven abreast. If one gets too far ahead of the other, the stability of any vehicle to which they are harnessed will be imperilled. Until the Prosecution of Offences Act 1985 the police were not only responsible for investigating most criminal offences, but in a large number of cases they also decided on whether to prosecute following their investigation, and conducted the process of prosecution when a decision to prosecute had been made. Many prosecutions for minor offences, including the majority of motoring offences, were conducted throughout by police officers who thus appeared as advocates in the Magistrates’ courts.
Reforms in the Criminal Process III: Mode of Trial
Authors: Windlesham Lord
Published: November 2023

An authoritative account of the methods used by the Labour leader ship to refashion the Party and win the 1997 General Election with such an overwhelming majority was noted in an earlier Chapter. The title chosen by its author, Philip Gould, was ‘The Unfinished Revolution’. The book argued that the process of modernisation must not stop with the election victory. The links so laboriously built up connecting the leadership with its electoral supporters should not be allowed to fall into disuse. To the surprise of many veteran politicians and commentators, who had heard this sort of thing before seeing governments, weighed down by the compelling pressures of public business, becoming more and more remote, Tony Blair in office not only kept a watchful eye on fluctuations in public opinion towards the Labour administration, but continued to woo the electorate with the same zeal as he had shown in Opposition.
Self-Help In The Digital Jungle
Authors: Dam* Kenneth w.
Published: November 2023

A word about my title: ‘Digital Jungle’ is designed to evoke a content provider’s perspective on the dangers to be run in putting valuable content on the Internet. ‘Self-help’ refers to an expanding set of technologies and systems designed to protect content from unauthorized copying and to facilitate elec tronic commerce involving content. I use ‘content’ broadly to include text, data, images, audio, video, and all of the other media that patrons of the Web are familiar with.
Competition To Innovate: Strategies For Proper Antitrust Assessments
Authors: desanti Susan , cohen* william
Published: November 2023

Innovation is enormously important to the increased productivity and global competitiveness of US companies and to economic growth in general.1 Consequently, competition policymakers and enforcers in recent decades have consistently emphasized the importance of not impairing the incentives of firms to innovate. At the same time, increasing claims of anticompetitive conduct designed to dampen innovation competition have required antitrust.
Multi-Tier Custody
Authors: Austen-Peters A O
Published: November 2023

This chapter examines the impact of the introduction of a chain of sub-custodians between the investor and ‘his ‘ securities on the interest enjoyed by an investor with assets held in custody. Perhaps the most important reasons for the establishment of such a chain are the fact that much investment is now crossborder or immobilised, which may necessitate the employment of sub-custodians if the investor uses a global custodian. In view of this, it is likely that it is the analysis in this chapter that will best illustrate the nature of a typical investor ‘s claim.
Breach Of Duty
Authors: Austen-Peters A O
Published: November 2023

This chapter considers the implications of breach of duty by a custodian under general law and examines some of the criteria that an investor would need to satisfy to obtain redress. It has been suggested that the cost and complexity of these types of action constitute one of the motives for enacting financial services regulation, not least to provide alternative avenues of recovery. The avenues for redress under regulation are examined in the chapter on regulation.
Cross-Border Custody
Authors: Austen-Peters A O
Published: November 2023

The assumption in the foregoing chapters that the parties and assets under consideration are based in England makes for a clearer exposition of the principles underpinning the custody of investments, but such a scenario will often not obtain in practice. Modern investment is increasingly cross-border.1 A single transaction or investment structure may bring together an investor in one country, tiers of intermediary custodians in other countries and an underlying asset in yet another country. On these facts, the laws of a number of different countries may be relevant to the nature of rights of the ultimate beneficiary and to transactions involving custody assets.
The Policy of Reduction
Authors: Lewis Richard
Published: November 2023

Although the policy of reduction reduces damages by the amount of benefit received, it does not require the collateral source to be reimbursed. Therefore, from a defendant’s point of view, reduction is the most favourable of the three solutions to the policy questions posed at the beginning of this book. Defendants not only pay less money to claimants but they also avoid paying anything to the collateral sources. From a public policy viewpoint this solution appears on the surface to be the least attractive of the three. The wrongdoer seems to be subsidised at the expense of the Good Samaritan and this offends our sense of morality.
Gifts and Charitable Payments of Money
Authors: Lewis Richard
Published: November 2023

Earlier, we noted that there were two clear exceptions to the general rule favoring the deduction of collateral benefit from damages. The first exception, relating to insurance, was considered in the last chapter. The second exception, dealing with money received as a result of the benevolence of others, is dealt with here. This exception is less important than that of insurance and there have been very few cases dealing with it. In spite of recent policy criticism, the exception is well recognised where recipients of tort damages also obtain payments from a charitable fund raised by public donation.
Benefits Accruing to Dependants
Authors: Lewis Richard
Published: November 2023

If the injury results in death the rules relating to collateral benefits are governed by statute rather than common law. The Fatal Accidents Act 1976 s 4 states:

In assessing damages in respect of a person’s death in an action under this Act, benefits which have accrued or will or may accrue to any person from his estate or other wise as a result of his death shall be disregarded.
Reviews and Appeals
Authors: Lewis Richard
Published: November 2023

There are two ways in which a Certificate of Benefit can be challenged. The first is by a process known as review whereby the DSS is asked to re-examine what has been done. The CRU will then have another look at the position and then, in formal terms, a decision is made on the application by the Secretary of State. Review is usually a speedy and less formal way of getting a decision changed. By contrast, the second method is more formal and is not available until after the final settlement of the compensation claim. It is to appeal to a tribunal set up under the system which deals with disputes involving social security generally.
Causation Disputes: Are Benefits Paid Because of the Injury?
Authors: Lewis Richard
Published: November 2023

Bys 1(1) of the 1997 Act, recoverable benefits are only those which ‘have been, or are likely to be, paid … during the relevant period in respect of the accident, injury or disease.’ Causation is thus at the heart of the scheme. Have the benefits been paid ‘in respect of the accident’? Was it the injury that caused the claimant to be absent from work throughout the period during which he received benefit, or was there some other cause? For example, did the claimant become ill from an unconnected cause so that it was his congenital condition, and not his injury, which was wholly the cause of his absence from work?
Introduction
Authors: Stevens Robert
Published: November 2023

It is easy for even the most incompetent lawyer to give an account of an area of law which makes it seem difficult and abstruse. The trick is to explain the law so that it seems simple and may be readily understood. Where the subject is cross-border security and insolvency this is a particularly hard trick to pull off. This collection originated at a colloquium held at St John’s College Oxford in April 2000. A case study, set out in Appendix 1, was used as the basis of discussion and as a direction pointer for the various papers, which are set out in this collection in a revised form. This book is divided into five parts, as was the colloquium itself. The first part takes the form of a plea for help from a banker. The second part is an attempt to provide an overview of the ways in which security may be taken in England, the United States, France, and Germany. The third section considers the choice of law rules in relation to security in those countries. In the fourth, Professor Goode discusses the attempts through international conventions to solve the problems raised by the inadequacies of and the conflicts between current choice of law rules. Finally, the international impact of insolvency upon cross-border security is considered.
Taking Security in England
Authors: Calnan Richard
Published: November 2023

The purpose of this chapter is to provide a brief outline of the ways in which security is taken in England. It assumes that the person providing the security (the ‘debtor’) is a company and that the person receiving the benefit of the security (the ‘creditor’) has lent money to the debtor or provided some other form of credit to it. After an initial discussion of the principal types of security interest which can be created under English law, there will be an analysis of the main priority issues which arise, the way in which the security is enforced, and the effect of insolvency proceedings in relation to the debtor. The chapter will then examine how those principles impact on the taking of security over three specific types of commercial asset (goods, receivables, and sharest before considering how security can be taken generally over all present and future assets of the debtor. Finally, there will be a brief discussion of other ways in which a transaction can be structured so as to avoid the creation of security but to give the creditor substantially the same rights as it would have had if it had taken security.
Secured Transactions in Personal Property in the United States
Authors: Broude Richard F
Published: November 2023

The federal system of government under which the United States operates has meant that, while the Federal Government is responsible for bankruptcy laws, laws governing secured transactions in real and personal property are the province of the various states. The Constitution grants Congress the power to enact ‘uniform Laws on the subject of Bankruptcies throughout the United States’.1 Although it is not necessary that there be a federal bankruptcy statute,2 a bankruptcy law has been continuously in effect since 1898.3 When there is a federal bankruptcy statute, contradictory state laws are superseded.
English Conflicts Rules for Transfers of Movables: A Contract-based Approach?
Authors: Bridge Professor Michael
Published: November 2023

It is now established beyond recall in developed legal systems that contracting parties are free to choose the law applicable to their contract. The importance of this development cannot be underestimated. It permits the project financier and its advisers to plan a complex transaction and to assess legal risk by reference to a chosen and transaction-friendly legal system. This principle of party autonomy is a long-standing feature of English law, though formerly subject to a limitation of uncertain scope that the choice be ‘bona fide and legal’.1 In an apparent response to this limitation, a prominent feature of certain standard form commodities contracts providing for the application of English law is a clause deeming that the contract has been concluded in England and has been performed in England.2 This second element especially is palpably fictitious in the case of the great majority of modern contracts entered into on the basis of those standard forms.
The English Conflict of Laws Rules
Authors: Stevens Robert
Published: November 2023

Assuming that the English courts have jurisdiction, which law or laws will be applied to determine the validity and priority of security rights? In order to answer this question it is necessary to distinguish between contractual (or in personam) validity and proprietary (or in rem) consequences. Where the debtor is insolvent the proprietary effect of the security will, obviously, be of most importance. The contractual issues cannot be ignored, however. If the law governing a contract of loan determines that nothing is owed, the proprietary effect of any security will be irrelevant.