The distinction between primary and secondary victims confirmed by Page v Smith has caused major problems in English psychiatric damage law. The House of Lords has suggested that the search for principle has been called off, and that the only sensible strategy is to say ‘thus far and no farther’. This paper suggests that one way forward is to recognise that it is not only persons who are physically proximate to an ‘accident’ who should be put in a special category: any case in which there is some sort of pre-existing relationship between claimant and defendant should be regarded as different from the standard secondary victim scenario. The relationship concept, first recognised in the USA and now adopted by the Court of Appeal, can be found in embryo form in the early cases.

Down the centuries, it has been considered that in general a doctor is only under a duty to exercise reasonable care in treating a patient. While the latter is entitled to a high standard of treatment, results are not guaranteed. In the United States, courts have imposed more onerous obligations, but in England there has been no real challenge to this position until now. The doctor's liability in contract has always had the potential of going beyond mere negligence, but the general concentration on tort actions and understandable uncertainties as to the scope of contractual liability meant that this potential was never explored.

Whether or not the events of 1992 will have significant effects on the criminal law, there is good reason for looking hard at those respects in which English criminal laws differ in scope from those of our European neighbours and partners. One obvious example concerns crimes of omission, especially those founded on public duties. German law has long had offences of failing to render assistance to a person in peril and similar offences are to be found in other countries such as Denmark, Finland, Italy, Russia and Spain. These laws stand in contrast to the English position, which remains essentially the same as Sir James Fitzjames Stephen described it in 1883:

A significant issue in combatting the Covid-19 pandemic is the need to enhance developing states’ access to Covid-19 vaccines. The present paper considers the request for a temporary waiver of intellectual property rights in relation to Covid-19 technologies and treatments submitted to the World Trade Organization and analyses a key argument against the proposed waiver: that the compulsory licensing provisions set out in the TRIPS Agreement are sufficiently flexible to help states get access to vaccines. The compulsory licensing flexibilities set out in TRIPS, including the amendment to TRIPS in Article 31bis, are evaluated, to explore whether compulsory licensing could be an effective tool in helping developing states to access Covid-19 vaccines. Key issues are explored from a human rights perspective to examine whether a rights-based approach to the compulsory licensing provisions could offer further insights as to how the provisions could be more workable, to enhance access to medicines and vaccines for developing states.

Recent high-profile convictions have called attention to the common law offence of preventing a lawful and decent burial. This offence, which can only be found in its modern incarnation since 1974, is being used with increasing frequency. We argue that there is, however, little justification (or need) for criminalising the prevention of burial per se. The historical context of the need to regulate the disposal of corpses is no longer relevant. Moreover, the ambit of the offence is such that it cannot be argued to be targeting acts of intentional disrespect to deceased bodies. We suggest that acts which intentionally impede the administration of justice are rightly criminal, but other offences already deal more appropriately with these. We conclude that the contemporary use of the offence of preventing a lawful and decent burial contributes to an unnecessary proliferation of overlapping offences, providing prosecutors and juries with a way to assign liability to a person whom they suspect, but cannot prove, is guilty of more serious charges.

This paper considers some of the difficulties arising from how English law conceptualises certain types of security interests over IPRs, and the problems arising from dual registration systems. This analysis is informed by a critical comparison of the current English doctrine, alongside the US system and the proposals from UNCITRAL. It is argued that attempts to regulate a world of integrated goods (whereby goods and software are inextricably interconnected), through unintegrated regimes of legal governance of security interests over goods and IPRs, is unsustainable. It will thus be argued that reform of security interest law generally (to bring about a functional system of security) and a single register for security interests whether over goods or IPRs is necessary. Specific recommendations to deal with problems concerning purchase money security interests, and third-party purchasers, are put forward.

The leading recent authority on beneficial interests in shared homes is Lloyds Bank plc v Rosset, where the House of Lords clarified what had become rather a confused area of law. By no means all the problems were resolved, however, and the House proceeded on the basis of a now commonly-held but nevertheless fundamental misapprehension, that common intention is relevant to the creation of a trust. It is our contention that once it is clear precisely whose intention is relevant, and why, many of the conceptual difficulties in this area disappear.

For the purposes of the discussion, we consider the two situations, where legal title to a home is vested in A alone, and where it is vested in A and B jointly. In each case, the question is whether B can claim a beneficial interest, and if so, what is its nature and extent.

Following the Gillick case in 1986, it was recognised that mature minors were owed a duty of confidentiality in respect of their medical information. Subsequent cases confirmed that the duty was also owed to non-competent children, including infants, but without explaining the basis for finding the existence of such a duty and its scope. It is particularly unclear when and upon what legal basis a doctor could disclose information to parents when their child wished to keep it confidential. This paper will examine the law of confidentiality as it applies to children, identifying issues which are problematic. Developments in the law of personal confidences which have taken place as a result of the Human Rights Act 1998, and the recognition of Article 8 rights as part of the law, will be reviewed and analysed from the perspective of the duty of confidence owed to children in respect of their medical information. Finally, the paper will offer an explanation of a basis for disclosure to parents which minimises violations of a minor's autonomy.

This paper attends to writing practices by way of examining how a professional regulator engages with research activities conducted by doctors. In order to explore regulatory responses to alleged research misconduct, I use a specific calligraphic practice shared by researchers and regulators. The paper shows that taking this calligraphic practice as an analytical focus can offer surprising dividends to the study of regulation across fields. Via the practice of strikethrough, the General Medical Council effectuates three gestures as it engages with research activities: display, authentication and isolation. Understanding them requires asking what literal and metaphorical meanings travel in the strikethrough.

This paper considers the impact of the Race Relations (Amendment) Act 2000. It focuses on the kind of situation presented by the Stephen Lawrence murder investigation where racist stereotypes and assumptions infect both police inquiries into serious violent crime and the treatment of victims or their families. It first demonstrates the limited scope of individual redress available prior to the Act in such situations (examining police complaints mechanisms, private prosecutions, misfeasance in public office, judicial review and negligence). It links limitations in the scope of individual redress to a traditional priority accorded to public interests. The Race Relations (Amendment) Act 2000 gives individuals a general right to sue the police for racial discrimination in investigations. It is argued that a similar right probably now exists – at least in the context of life-threatening violence – under the Human Rights Act 1998. These developments seem to signal a shift in the balance between individual rights and the limiting claims of public interests. But the singularity of the 2000 Act is that, in introducing the mechanisms and logic of anti-discrimination law into the criminal process, it creates the potential for a more interactive relationship between individual complaint and the public interest in the collective promotion of change.

In December 2005, the Civil Partnership Act 2004 came into force, thereby enabling same-sex couples to obtain formal legal recognition of their relationships. By modelling the provisions for dissolving such partnerships on divorce law, the government effectively transposed into the new regime both a fault-based ‘system’ and the accompanying sense that the law is vested with a role beyond that of simply ending relationships. In view of the recent, but ultimately failed, attempt to introduce no-fault divorce, this paper explores the role of law in this context. Drawing on a series of interviews with key individuals involved in the reform process, it explores how no-fault divorce was hijacked in a vain effort to provide simultaneous means of saving and ending marriage. In particular, the veto wielded by an influential group of idealistic conservatives during the latter stages of the reform process is identified. Given the inability or unwillingness of reformers to confront such conservatism with either a thoroughgoing defence of diversity, or the reality of the limited capacity of states to legislate for morality, the paper calls for a re-evaluation of the law’s role. It questions whether the Civil Partnership Act 2004 represents a missed opportunity to conduct such a re-evaluation and thus to point the way for future divorce reform.

This paper discusses the role of theory in legal education. It builds on an exchange between the author and Neil MacCormick and upon the discussion of the place of theory in legal education in William Twining’s symposium. The paper will move from some fairly concrete issues about the place of jurisprudence in the law curriculum towards some wider problems about the place of theory in legal studies and, finally, will consider some issues about the relationship between theory and jurisprudence. On the way it discusses the relationship between theory and philosophy in a manner which focuses upon the controversy about the foundational claims and pretensions of the theoretical and philosophical enterprise.

Drawing on the findings of a year-long empirical study of 15 charities in the county of Merseyside, this article examines some of the implications for charities of entering into the ‘contract culture’. Although not the focus of the empirical study as a whole, the particular aim of this article is to consider the effect of the contract culture on the typically small charity. After a brief consideration of the legal status of charities funding documents within the contract culture, a number of problems faced by small charities that are embraced by the contract culture, together with their legal consequences, are examined. A number of survival tactics for small charities are then discussed. In the light of the publication of the government Compact on relations between itself and the voluntary and community sector, a plea is made for more equal partnerships to be forged between charities and their funders within the contract culture.

Legislation has been enacted in both England/Wales and Scotland which criminalises smoking in certain places. This paper uses these prohibitions as a way of exploring two prominent theories of criminalisation which were employed in the parliamentary debates on the legislation, namely legal paternalism and the liberal ‘harm principle’. The paper argues that the creation of these offences cannot be justified by paternalism, and that the risk of harm to non-smokers from ‘passive smoking’is a preferable justification. This latter rationale could be used in support of more extensive smoking prohibitions in the future. The paper recognises the desire of many to limit the use of the criminal sanction and concludes by suggesting that unwarranted criminalisation can only be avoided if legislatures proposing new offences clearly articulate their reasons for believing that the criminal law is the best mechanism for reducing or deterring the conduct at issue, and demonstrate that the behaviour cannot adequately be deterred by non-criminal measures.

This paper advances a functional analysis of the UK constitution. It explores how the UK constitution discharges three minimum ‘constituting’, ‘legitimating’ and ‘limiting’ functions that citizens living in modern liberal democracies may legitimately expect all constitutions – irrespective of form – to perform. This functional enquiry breaks with dominant trends in the legal scholarship that remain focused on theorising the constitution's underlying political or legal nature or, likewise, identifying its ultimate source of authority. In addition to offering a richer descriptive account of constitutional practice, this paper identifies, normatively, an institutional responsibility for Parliament to discharge the UK constitution's three minimum functions. Recognising that institutional responsibility unlocks fresh insights into two constitutional conundrums: the legitimacy of judicial review and the status of ‘constitutional statutes’. At the same time, it also exposes deficiencies and tensions in relation to the quality of Parliament's institutional performance on matters of minimum constitutional functioning.

Since its inception, patent law has had many faces, manifesting different aims and functions. The latest recalibrations of the aims and functions of patent law are striking because – at its core – patent law itself has not changed significantly in this time. This paper examines the chameleon-like nature of the function of patents, tracking historical transformations from the privilege as an instrument of trade policy, to patents as an incentive/reward to invent and disclose the invention, and the most recent shift towards viewing patents as necessary for innovation. In particular, the paper addresses whether the latest shift represents a reversion to privilege-like functions, due to the analogous focus on commercialisation, and argues that this is not the case because of the fundamental move to focusing on patentees rather than society as a whole and to seeing patents as property.

The word ‘estoppel’ had its origins in the old French word ‘estoup’, meaning plug or stopper. The principle of estoppel by representation of fact operates in a manner which is consistent with those origins. Where a representation of fact is relied upon by a representee, the effect of the estoppel is to stop up the mouth of the representor, and prevent him or her from asserting facts contrary to his or her own representation. The rights of the parties are then determined by reference to the represented or assumed state of affairs. An estoppel by representation of fact can be used defensively, where an action which would otherwise be available to the plaintiff is not available on the assumed state of affairs. It can also be used aggressively, to establish a state of affairs in which a cause of action exists, where that cause of action would not be available on the true state of affairs.

This paper proposes the concept of a ‘hybrid institution’, defined with reference to certain institutions within the UK's constitutional order which provide oversight of national security processes. It focuses in particular on the Commissioners who have overseen and oversee the use of investigatory powers and the work of the intelligence services. These institutions, as was once said of another hybrid institution – the Independent Reviewer of Terrorism Legislation – are designed in order to operate within situations in which ‘potential conflicts between state power and civil liberties are acute, but information is tightly rationed’. They are ‘hybrid’ institutions in that they marry certain of the features characteristic of political institutions with others characteristic of legal institutions. The paper considers the relevant institutions and the role they play within the national security constitution, showing how their hybrid status facilitates the performance of a function which neither fully legal nor fully political institutions could fulfil.

The introduction of s 33 of the Criminal Justice and Courts Act 2015, criminalising the disclosure of private sexual images, has been seen as a welcome step forward for curbing this abuse of privacy and the harmful effects it has on victims. However, while s 33 sidesteps any reference to ‘revenge pornography’, as the phenomenon has been termed in popular vernacular, little attention has been paid to the way in which narratives of revenge implicitly underpin and imbue the new offence, particularly its specific intent requirement. We argue this has serious implications for the treatment of s 33 offences in the courts and for sentencing. Drawing on cross-disciplinary conceptualisations of revenge, its recent criminal-legal history, and examples of media and parliamentary rhetoric, we claim that despite innumerable attempts to turn debate on disclosure of private sexual images towards consent, harm and privacy, there lurks within these discourses an assumption that the victim must have done something to deserve the treatment she received. Until the multiple harms of disclosure of private sexual images are recognised and explicit recommendations are made that scrutiny of victims’ behaviour should normally be inadmissible, we argue that the offence offers little in the way of redress.

Focusing on a single, uncontested will is unusual within legal studies. And the extensive literature about EM Forster has overlooked the significance of his will. This article endeavours to address these silences and develop a conversation between the two. It first explores the place of inheritance in Forster's life and novels; and in doing so highlights his interest in inheritance as both a concept and a practice. Turning then to his will, it argues that it reveals a reflective personal and political engagement with concerns about kinship, sexuality and intimate citizenship which are central to current debates within socio-legal and sociological scholarship. This reading consequently argues that his will is a text that can be read alongside his other work; that it represents a ‘posthumous publication’. While a close, critical reading of the will of one very particular individual, the article identifies the challenges posed to testators in negotiating the public and private nature of wills and highlights both the rich potential and the difficulties that these texts present for socio-legal, literary and biographical scholarship.