Intended conduct is not the only means by which people, for good or ill, make their presence felt in the world. Nonetheless, much judicial and academic learning exists on the meaning of intention in law. In spite of so much learning, however, our understanding of how intention affects the wrongfulness of conduct remains impoverished. The impression given by case law and commentary is that the important issues raised by the role of intention in the criminal law can largely be exhausted by exploration of the distinction between direct and oblique intention: between desired goals and side-effects foreseen as certain in acting. Nothing could be further from the truth. In particular, there is far more richness and complexity in the concept of direct intention itself than has been hitherto realised. In this article, I will focus on two more or less neglected species of direct intention: the intention to try to do wrong, and the intention to expose another to the risk of wrongdoing. An understanding of the moral significance of these kmds of intention enhances our understanding of the nature and scope of criminal attempts and possible offences of endangerment in English law.

The Public Interest Disclosure Act 1998 provides protection for whistleblowers; it does not place statutory obligations on regulators to act in response to whistleblowing concerns. Using Freedom of Information requests as a research methodology, this paper seeks to examine how whistleblowing is approached by regulators and what happens when a whistleblowing disclosure is made. Forty-eight national regulators in a variety of fields and 408 county, district and unitary local authorities with responsibility for the regulation of food were contacted. The paper begins by considering the importance of whistleblowing disclosures and how they are protected in PIDA. The examination of the law reveals that several organisations with important regulatory functions are not prescribed, and this has the potential to create inconsistencies in the protection of whistleblowers. The bulk of the paper examines the results of the Freedom of Information requests. By examining the results of these requests, it was possible to show that there are a number of inconsistencies in the way in which regulatory agencies handle concerns. Several changes to practice are suggested in order to ensure that the whistleblowers receive appropriate treatment and that the concerns that they express can be properly addressed.

Law has traditionally viewed emotions as the enemies of rationality and reason, irrational and potentially dangerous forces which must be suppressed or disregarded. This separation and enmity has been mirrored within undergraduate legal education in England and Wales, with its rigid focus on seemingly impartial and objective analysis and notions such as the ubiquitous ‘thinking like a lawyer’. This paper will argue that attempts to disregard or suppress emotions within the law school are both misguided and destined to fail. It will explore the integral part emotions play within effective legal learning, the development of legal skills, and the well-being of both law students and legal academics. It will also consider how developments in legal scholarship and the evolving climate of higher education generally offer some potential, but also pitfalls, for the future acknowledgment and incorporation of emotions within undergraduate legal education in England and Wales. Bodies of literature relating to not only legal education, but also education generally, psychology and philosophy will be drawn on to demonstrate that emotions have a potentially transformative power within legal education, requiring them to be acknowledged and utilised within a more holistic, integrated form of law degree.

This paper considers certain proposals made by the European Commission on environmental liability, particularly in its White Paper on Environmental Liability. Civil liability has made a relatively minor contribution to environmental policy in recent decades, given its many well-known shortcomings when applied to environmental problems. Its usefulness, however, is being reassessed, given something of a consensus that traditional forms of regulation are reaching the limits of their effectiveness and that new approaches to environmental law are necessary. This paper will consider how the White Paper would move beyond the limitations of existing civil liability frameworks, in particular the fundamental incompatibility between the interests recognised in English tort law and the interests at stake in environmental protection. The Commission's recent retreat from the more ambitious elements of the White Paper may be a matter of concern.

The general theme of this conference - legal change and legal scholarship across Europe - reflects a growing interest of British academic lawyers in the increasing European dimension of law. Indeed, the new dynamics of the unification movement is one of the most salient features of the legal development of the recent past. It has many aspects, including EC legislation and the drafting of restatements and of general principles of law, which I will shed some light upon in the first part of my paper. I will then venture an explanation for the renascence and the new appeal of the unification movement (section II) before turning to a more specific discussion of the hamonisation of private law in Europe (section III), the significance of general principles of law for its unification (section IV), and the restatements of contract law and their role in the process of integration (section V). For the sake of clarity, I should like to premise that harmonisation and unification, although technically having different meanings, will be used interchangeably here.

Over the years, there has been an explosion in the mainstream scholarship of various academic disciplines on the issue of the appropriate corporate objective, which has been framed by a debate between the shareholder wealth maximisation and stakeholder-orientated theories. Behind the two paradigms is a complex set of controversies on which there exists wide disagreement. What is certain is that the prevailing theories have obvious normative and/or practical limitations and neither is to be extolled as an affirmative theory, for different reasons. The purpose of this paper is to cut through the consequent knot of partial and inaccurate dialectic in order to develop a positive normative principle of the corporate objective. This will be referred to as the Equitable Maximisation and Viability principle. The objective of the corporation as a separate legal entity should be to: (i) respect, protect, and fulfil the demonstrable, legitimate interests and expectations of the constituent groups that contribute to the corporation; and (ii) to facilitate the corporation's viability so that its future is guaranteed with sufficiently high probability. This theory is justifiable on the basis of the values of equality and efficiency.

The paper assesses the extension of the public sector equality duty to cover religion and belief. The duty on public authorities is to have due regard to the need to eliminate discrimination, harassment and victimisation on grounds of religion and belief; and advance equality of opportunity and foster good relations between people of different religions (and none). The paper considers a number of concerns about how this duty may be applied in the context of religion and belief, and, in particular, that it could give rise to resentment between communities rather than fostering good relations. It is suggested that the potential difficulties of such a duty, when applied to religion and belief, may be lessened if it is based overtly on a concept of equality which aims to address disadvantage, rather than on a concept based on dignity or recognition.

Failure of medical advice by a medical practitioner can vitiate a patient’s consent to treatment giving rise to battery and it can also constitute a breach of the medical practitioner’s duty to inform bringing in negligence. This failure to inform pertains to the two torts of battery and negligence. What then is the distinction between medical trespass and medical negligence? The English cases from Chatterton v Gerson in 1981 to the recent leading case of Sidaway v Bethlem Royal Hospital Governors and Others have drawn a distinction. The distinction between the two torts is useful for the purposes of classification and application of tortious liability and is also necessary for the purpose of establishing the different functions of the two torts. Unfortunately, the distinction drawn is inappropriate. The article will first examine the distinction drawn by the cases between the two torts in this area of failure of medical advice; then it will discuss the difficulties in the distinction employed; and, finally, it will suggest a more appropriate relationship between medical trespass and negligence.

During 2020, weddings were profoundly affected by the Covid-19 pandemic. During periods of lockdown few weddings could take place, and even afterwards restrictions on how they could be celebrated remained. To investigate the impact of such restrictions, we carried out a survey of those whose plans to marry in England and Wales had been affected by Covid-19. The 1,449 responses we received illustrated that the ease and speed with which couples had been able to marry, and sometimes whether they had been able to marry at all, had depended not merely on the national restrictions in place but on their chosen route into marriage. This highlights the complexity and antiquity of marriage law and reinforces the need for reform. The restrictions on weddings taking place also revealed the extent to which couples valued getting married as opposed to having a wedding. Understanding both the social and the legal dimension of weddings is important in informing recommendations as to how the law should be changed in the future, not merely to deal with similar crises but also to ensure that the general law is fit for purpose in the twenty-first century.

Contemporary state authorities in the United Kingdom and elsewhere have increasingly sought to regulate the use of public space. This paper explores through a doctrinal and socio-legal analysis how recently introduced Public Spaces Protection Orders (PSPOs) are being used in England and Wales to enforce majoritarian sensibilities at the expense of due process and civil liberties. PSPOs were introduced in October 2014. These orders grant considerable discretion to local authorities to use the threat of criminal sanction to regulate activities in public spaces that they regard as being detrimental to the quality of life of residents. This paper provides the first comprehensive critique of how these orders are used to target minority and vulnerable groups, while curtailing fundamental freedoms. The paper includes suggestions for reforms to make the PSPO function in a manner that is more compatible with a rights-based approach.

This paper examines the legal support available to incarcerated children when they leave custody. It argues that the current support provided to custody-leavers – which includes both ‘resettlement’ (provided by youth justice agencies) and duties owed to some custody-leavers under Pt III of the Children Act 1989 – may achieve criminal justice aims (such as preventing re-offending) but does not adequately protect the status and rights that all custody-leavers have qua child. When the child leaves custody her primary status is child, not offender, and therefore it is argued here that she should be entitled to the same legal rights as analogous groups of children; namely, care-leavers. It is suggested that the reason why care-leavers and custody-leavers are comparable groups to whom parity in legal rights should be accorded is because the four types of responsibility that underpin the state's obligations to care-leavers (reparatory, assumed, generational and equity-based) apply equally to custody-leavers.

Money is central to the constitution, whether the focus be effective power, legitimate authority, or both. To map the distribution of power within government it is best to begin by examining the control of money, because little of the business of government can be done without incurring expenditure of some sort. Control of money gives control of policy, either directly - because, in many fields, ‘expenditure is policy; policy is expenditure’ -or indirectly, on the principle that he who pays the piper calls the tune.

The law of negligence favours redress for damage to property interests over redress for damage to mere economic interests. The question arises whether this preference can be justified. In endeavouring to answer it, the author surveys existing reasons given by courts and commentators for maintaining a distinction between property and economic interests. Each of these reasons, which collectively focus upon the ‘problematic’ nature of economic losses, is found to be either ad hoe in nature or without substantial explanatory power. However, it is submitted that the distinction is explicable on the basis that, whereas an individual's personality is partly constituted by the property that he or she owns, so that property can be seen as essential to the ways in which individuals constitute and define themselves, no such claim can be made with respect to mere abstract holdings of wealth. Although wealth permits the acquisition of property and participation in activities and experiences which might help to constitute and define the self in the future, the very fact that wealth has not been transposed into these things precludes it from being considered as important as actual holdings of property. The protection of property interests ought, therefore, to precede the protection of mere economic interests.

Many human and financial resources are being spent on the asylum determination and appeal processes in order to distinguish those asylum applicants who require protection from those who do not. However, the majority of failed asylum seekers do not leave the country. The lack of an effective removal policy defeats the purpose of having an asylum system at all. In other words, removals of failed asylum seekers are essential to preserve the integrity and credibility of the asylum system. Since forced removals are a crucial component of our asylum system, this paper seeks to examine how they can be made more eflcient and humane. In particular, it examines the recent measures adopted through the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 and proposed measures currently debated at the EU level.

Proportionality has been testing the judiciary for decades. However, a single replicable model of proportionality has not been consistently applied by the courts. This paper explores the differential application of proportionality in English law. It is argued that these differential approaches create doctrinal confusion and give rise to numerous shortcomings. These shortcomings include: (i) the a priori weighting of fundamental rights; (ii) undue deference to state institutions; and (iii) variable judicial scrutiny dependent upon the source of the rights in question. It will be argued here that the courts ought to adopt a common standard of proportionality review in all proceedings concerning fundamental rights. The viability of this approach will then be tested against existing case law.

In December 1996 Classification of Obligations formed the topic of one of a series of SPTL seminars under the general title of Pressing Problems in the Law. It may, perhaps, be asked quite why classification is a pressing problem, for it is by no means clear from the papers themselves that common lawyers have suddenly become more concerned about the internal structure of the ‘seamless web’. Nevertheless the seminar was a valuable opportunity to reflect upon a subject that is at least a useful vehicle for thinking about legal knowledge. Legal classification, in other words, raises questions of an epistemological nature. The purpose of this present paper is to pursue this epistemological point in an attempt to reveal how classification of symbolic knowledge (legal propositions or rules) hides much deeper issues about the role of non-symbolic knowledge (symmetries, images and isomorphs) in the formulation of legal solutions in the law of obligations.

This paper proposes a model for designing consumer dispute resolution (CDR) mechanisms (including conciliation, adjudication, arbitration and ombuds schemes). This field has expanded significantly in recent years, replacing courts as the primary forum of dispute resolution in some areas of consumer-to-business activity. This expansion has been ad hoc, with a lack of consistency in the design of CDR mechanisms and in the overall shape of the CDR landscape. In light of the recent implementation of the EU's Directive on Consumer Alternative Dispute Resolution and Regulation on Consumer Online Dispute Resolution, Dispute System Design (DSD) requires urgent attention to ensure that the design of future mechanisms is based on coherent principles. A failure to address this issue risks undermining the legitimacy of state-sanctioned dispute resolution. The model described in this paper proposes a systematic approach and aims to: synthesise existing DSD models; apply the concepts of DSD to the field of CDR; and provide a framework that may be of use in other disputing contexts.

The paper argues that the margin of appreciation (MoA) doctrine of the European Court of Human Rights (ECtHR, or Court), should be understood as, inter alia, an underenforcement doctrine, according to which Convention rights should not be applied to their full conceptual limits. Underenforcement is justified by institutional considerations relating to the Court's role and competence. Although institutional considerations have been theorised normatively, the paper claims that ‘low‐level’ empirical inquiry into the comparative institutional competence of different decision makers across the Council of Europe is critical in explaining MoA. Such comparative empirical analysis ties shared institutional responsibility and subsidiarity with certain traits of decision makers when determining Convention rights. In this context, the paper briefly compares the decision making abilities of different institutions. It concludes by stressing that under certain circumstances the Court can be worse placed than national authorities to decide on violations of Convention rights. This is corroborated by the Court's case‐law concerning Convention rights impinging on the economic and social policies of States Parties.

Family law has not only become a specialism in its own right, but family law practitioners have claimed for themselves special characteristics. This article reviews the attributes and skills to which the legal profession, and particularly the solicitors branch, aspires. It notes that the ‘specialist’ forms of client care and case management, familiarity with rules and procedures and a conciliatory approach are not unique to family lawyering. Family lawyers also require themselves to have knowledge of ‘non-law’ matters, especially those relating to the welfare of children. On reviewing recent empirical research studies about the work of solicitors, the article asserts that, for family lawyers, non-law norms control their practice and form the framework for a very particular type of client care. The article then goes on to examine - by using research on solicitors attitudes to the ‘meaning’ of the concept of parental responsibility - how practitioners cope with the tensions inherent in modern family legislation. It concludes that solicitors in practice convey policy messages rather than clear messages about legal rights and remedies.

Among its many provisions, the Criminal Justice Act 1991 contained, in its original s 29(1), a prohibition on the use of previous convictions in the determination of sentences for current offences. This particular provision was the subject of much criticism before and after its coming into effect, so much so that within a year of its implementation it was replaced by a new section which, arguably, could have precisely the opposite effect. What follows is an attempt to chart the short life and sudden death of the original s 29( 1). The importance of such a prohibition to a 'deserts-based' sentencing framework will be discussed and some possible explanations for its removal will be suggested. Some of the implications of the change will also be examined, both in terms of its impact on the coherence of the sentencing framework that remains, and its possible impact on future sentencing trends.