This paper calls for the lawyering profession – which is often viewed as unabridged – to be reframed into two distinct occupations: legal aid practice and private practice, to better incorporate the divisions in labour. In order to better understand contemporary legal aid work and its workers, the hidden realities must be unveiled from behind their private counterparts, which opposingly signify wealth, professionalism, autonomy and privilege. Set within a context of crumbling professional identities, a shrinking industry and financial constraints, the paper draws on ethnographic and interview data. It finds that those working in legal aid undoubtedly face a more stagnated, under-resourced and precarious working environment, which means that their professional experience is vastly different from their private counterparts. Likewise, those in the field face toxic narratives from the government, the media, the public, and their private counterparts alike, resulting in persistent discourse of vilification. Ultimately, it calls for a refocus of legal aid work as a separate vocation due to its altruistic underpinnings, unique ‘professional’ identity, and values.

This paper examines the question of reparation for non-recent institutional child sexual abuse in England and Wales and Australia in the light of independent inquiries which reported in 2022 (England and Wales) and 2017 (Australia). Both inquiries recommended the introduction of state-based redress schemes that would exist alongside private law. While the new UK government considers how to proceed, Australia has established a national redress scheme, there have been changes to private law and new legislation reforming tort law and removing procedural obstacles such as limitation. In evaluating the Australian reforms and the case for change in English law, this paper examines the different roles state-based redress and private law compensation play in responding to the harm suffered by victims and survivors of sexual abuse. It argues that there are urgent lessons that the UK government should learn from the Australian experience in establishing a redress scheme and that while legislative change to substantive private law has proven less than successfull in Australia, legislation on limitation periods and suing unincorporated associations has assisted plaintiffs. Finally there are lessons that private law can learn from state-based redress schemes in seeking to provide remedies that meet the distinctive needs of victims and survivors of child sexual abuse.

Since its inception in England and Wales, the partial defence to murder of loss of control has generated a steady stream of appeals. Individually, those appeals have illuminated key aspects of the plea's operation. This paper, though, is the first to explore that operation via a systematic analysis of every loss of control appeal to date (110 cases). Using that data, the paper frames more effectively, and thus improves understanding of, a neglected phenomenon in the plea: specifically, the decision-making roles of criminal justice ‘gatekeepers’ – principally trial judges, juries and prosecutors – in governing access to loss of control. In doing so, the paper assesses how far these gatekeepers interpret the plea's requirements in a ‘civilising’ way – one which prioritises meritorious loss of control claims above those which are unmeritorious. It contends that each gatekeeper struggles to regulate loss of control in such a way. Ultimately, this diminishes the symbolic value these reforms may have had and frustrates any civilising potential of homicide law reform.

This paper considers the legality of the UK practice of prosecuting trans people for sexual offences on the basis of deception as to gender history, a practice unknown in other member states. It argues that such prosecutions may constitute an unjustified violation of Article 8 of the European Convention on Human Rights. Moreover, it argues that where criminal prosecution falls within the scope of Article 8 but is viewed as objectively justified under Article 8(2), it may constitute a violation of Article 14. The paper will proceed as follows. Part 2 will provide some background context regarding prosecution of trans people for deception as to gender history in the UK. Part 3 will set out the current law pertaining to sexual fraud in England and Wales. Part 4 will present two arguments as to why prosecutions based on current English law, or Crown Prosecution Service interpretations of it, may violate Article 8: (1) a right to respect for privacy is undermined by lack of legal certainty regarding the threshold of criminal liability; and (2) deception as to gender history ought not to be considered a material deception serving to vitiate consent as a matter of law. Part 5 will consider the issue of potential discrimination under Article 14.

This paper examines a long-standing doctrine in charities law – that if an organisation's main purpose is political then it cannot be charitable. This doctrine is not without controversy because it has the potential to exclude many worthwhile organisations from charitable status, and fetter worthwhile advocacy by those that do have status. While no jurisdiction remains unwaveringly committed to the orthodox political purpose doctrine, we argue that none so far have confronted the public benefit – and detriment – of political advocacy adequately. This paper proposes a way of assessing the public benefit of political advocacy in liberal democratic societies. It argues that political advocacy can give rise to clear public benefit: this is an indirect or process benefit associated with advocacy itself regardless of the end advocated for. However, recognising political advocacy purposes as charitable should still be subject to two constraints: the altruism requirement (reflected in the ‘public’ aspect of public benefit); and consistency with liberal democratic values (as part of the ‘benefit’ aspect). These constraints are needed because, while political advocacy can generate benefit, detriments may also be associated with political advocacy.

The closed material procedure (CMP) – ever since its introduction to English law – has been subjected to a very significant amount of academic criticism. But over time, the CMP has become increasingly settled as a fixture in English law. Whilst the existence of the CMP per se in English law seems settled, the extent of its deployment is not. Given this development, it seems important and constructive to examine whether – and the conditions under which – a CMP can ever be normatively justified, all things considered. Two propositions will be made. First, a common argument for the CMP – the maximising argument – does not demonstrate that the CMP is normatively justified, all things considered, for it does not sufficiently mitigate the two main objections to the CMP, based respectively on the principles of natural justice and open justice. Secondly, where the clear advantage variation is deployed – ie when a CMP allows the excluded party to make use of material that: (a) clearly advantages him; and (b) would otherwise be unavailable for the court's consideration – both objections are sufficiently mitigated. In such a case, the CMP is normatively justified, all things considered. This constitutes a limited normative case for the CMP.

The purpose of this paper is to examine the contours of evolving jurisprudence on offensive expression and negative messages, and to suggest that it can best be understood by reference to the concept of stigma. At the European Court of Human Rights, there appears to have been an increasing willingness to recognise the harm of offensive expression through an interpretation of Article 8 of the European Convention on Human Rights, but the reach of this case law remains uncertain. In particular, while some cases associate negative expression with negative stereotyping, not all of these cases do, and there are potential conflicts with freedom of speech. In the domestic context, these issues recently arose in a significant case from the Court of Appeal, R (Crowter) v Secretary of State for Health and Social Care. In this case, the appellants argued that a legal provision sends a negative ‘message’, through the negative stereotyping of disabled people, but this ‘message’ is implicit, rather than explicitly articulated. While these developments raise important questions about the future evolution of case law, we propose that a focus on stigma can more clearly highlight the harms involved.

This paper explores the use of mindset material in terrorism cases. Mindset material is a broad category of evidence, including social media activity and internet search histories, relied on to infer or imply that the accused is affiliated or aligned with terrorists. Although mindset material plays a central role throughout the justice process in terrorism cases, no work to date has explored and discussed its use in depth. In this paper I draw on doctrinal and empirical findings, including interviews, to examine how and why it has come to play such a central role in terror cases. While mindset material is a well-intentioned tool used to selectively enforce broadly drafted and vaguely defined terrorism offences, it is also a blunt tool, and sees great emphasis placed on the accused's inferred status as terrorist (or not). In this paper I explore and problematise the use of mindset material and the inferences drawn from it, specifically in relation to to fantasists, the merely curious, and young autistic defendants. I posit that mindset material is symptomatic of a need to revisit the substantive law and to rethink the proper role of the criminal law in preventing terrorism.

From 1948 to 1972 the idea of the environment gained solidity within the sciences and in global politics, as a thing or a concept, which spoke of a need to save humanity from the harms it was inflicting on the natural world. As historians Warde, Robin and Sörlin explain, the idea brought about a revolution in the sciences, casting scientists as environmental problem solvers, fundamentally changing the way they worked. In this paper we connect law and lawyers to this history. We ask, did lawyers contribute new meanings to the idea of the environment when they first presented laws and parts of legal practice as ‘environmental’? Were they mere translators of the scientists’ ideas? And did they envisage the emergence of new environmental legal experts, who might change legal culture? We examine the early environmental law textbooks in five countries (Australia, Canada, England, New Zealand and the US) and devise ideal types to explain the associations, values and choices which underpinned their presentation of the ideas of ‘the environment’, ‘environmental law’ and ‘environmental law expert’. We consider that these types are useful conceptual tools which raise ongoing questions about the relationship between environmental law and its broader context.

The Irish Constitution contains a pre-enactment abstract review procedure under Article 26 whereby, before signing a Bill into law, the President can refer the Bill to the Supreme Court for a decision on its constitutionality. However, only 16 such references have ever been made. The reason Irish Presidents have been cautious about sending Bills to the Supreme Court for abstract review relates to the fact that if a Bill survives the Article 26 review process, it then acquires an immunity from further challenge under Article 34.3.3. This has sometimes been referred to as a ‘seal of constitutionality’ and the absolute nature of this blanket immunity has been criticised because it means that, in practice, the review process is rarely used. By its very nature, abstract review suffers from the defect that the provisions are being looked at in a vacuum, without the benefit of a concrete factual scenario and it may be that circumstances later arise which could result in an unconstitutionality that was not apparent when the Bill was initially examined. For this reason, Presidents will sometimes decide not to refer a Bill, even one which is considered controversial, for fear of closing off the Bill to potential future challenges; they may feel it is better for challenges to occur organically as situations arise rather than to prevent a situation where a future challenge is blocked by the immunity following the review process. As Hogan has put it, ‘[w]ithout a plaintiff, a court may fail to anticipate side-effects or unintended consequences of the law’. The paucity of occurrences means that when the procedure is invoked, there is a great interest (amongst members of the legal and academic communities at least) in the process and outcome.

Force majeure (FM) clauses are designed to free both parties to a contract from liability when an event beyond their control prevents one or both of them from performing the contract. Examples of such events include inclement weather, natural catastrophes, political upheaval, changes in applicable rules or regulations, or unavailability of essential supplies or services. It is common to include FM clauses in manufacturing, construction or transportation contracts, where there is a high risk of such events occurring due to the length of time required to perform the contract, or the complexity of the performance obligations. Often a lot of money is at stake and pre-allocating the risk of such events is crucial to avoid disputes further down the line. While disputes regarding the meaning and effect of FM clauses may not be unusual, such disputes rarely reach the Supreme Court. MUR Shipping was one such rare case.