This paper examines how the courts can appropriately oversee the way in which local authorities formulate and implement their housing allocations policies. It locates this discussion within the wider topic of the courts' long-standing reluctance to become involved in adjudicating cases involving the allocation of resources more generally, as well as the potential for the courts to facilitate citizen participation in decision making, an aspiration that permeated the previous government's agenda and is apparently also a key influence for the current coalition government. It seeks to identify how the courts can protect both procedural and substantive fairness, in a manner that respects the courts' constitutional position and institutional competence.

Promoting alienability has been a policy of the law for many years. The rule against inalienability is one aspect of that policy. This paper seeks to demonstrate that that rule throws doubt on the validity of useful provisions such as the asset-lock provisions of the new breed of community-interest companies; that, historically, it has not been applied where logically it should have been; that the related rules restricting the imposition of conditions on transfers can readily, and better, be based upon secure doctrine rather than uncertain policy; and that, overall, its repeal, if thought necessary with concurrent reforms, would be welcome.

The issue of the admissibility of improperly obtained non-confessional evidence in criminal proceedings has been the subject of considerable academic discussion. However, much of the discussion in England has been confined to an exploration of the deficiencies and internal inconsistencies of the English law in the area. In particular, the House of Lords decision in R v Sang has been subjected to intense scrutiny and criticism. Little has been written which examines the theoretical issues associated with the problem of improperly obtained evidence, with view to laying down foundations for a new approach. It is this task which I seek to undertake here. First, it will be demonstrated that the major Anglo- American legal systems have all abandoned rules ofmandatory inclusion and mandatory exclusion of improperly obtained evidence in favour of more flexible positions whereby such evidence is to be admitted in some circumstances but excluded in others. This suggests that rules of mandatory inclusion and mandatory exclusion have been perceived to be undesirable.

Employment rights may be crafted as ‘bright-line’ rules or open-textured standards. Employment rights which are framed at a higher level of generality, such as standards, have not been examined in the same level of detail as rules in labour law scholarship. Standards can be divided into standards of conduct and standards of review. Standards of conduct represent commands to decision makers, such as employers, which enable them to scrutinise their decision making internally; whereas standards of review are addressed to adjudicators whose function it is to scrutinise the conduct of decision makers externally. In the majority of cases, the intensity of scrutiny which is attached to both of these standards will be the same, resulting in conflation. However, there is a general assumption that in adjudicating disputes involving employment rights, the judiciary is overly deferential to the managerial prerogative and this assumption can be corroborated – but also challenged – by an analysis which focuses on standards of review quite separately from standards of conduct. Such an examination reveals situations in which the level of scrutiny exerted externally by the adjudicator pursuant to the standard of review may be less, but also more, acute than that attached to the internal standard of conduct. This paper goes on to evaluate what the degree of intensity of scrutiny attached to standards of conduct and review reveals about employment rights more generally and erects a framework against which the argument about varying intensities of scrutiny can be given greater clarity.

Mounting concern over the burgeoning growth and impact of the tort of negligence has, as is well known, led to a backlash in recent years. The higher courts have re-imposed more restrictive approaches to the question of the duty of care, culminating in the assertion that ‘close and direct proximity’ is the pre–condition for the imposition of a duty of care, by the Privy Council in Yuen Kun Yeu v A–G .f Hong Kong. However, this attention, focussed on what are generally cases peripheral to the mainstream of tortious liability, has diverted many commentators away from the issue of breach of duty, which lies at the heart of the great preponderance of tortious litigation

Section 58 of the Offences against the Person Act 1861 prohibits the use of means with intent to procure ‘miscarriage’. In Smeaton Munby J held that the administration of the ‘morning after’ pill with intent to prevent the implantation in the uterus of any embryo conceived as a result of sexual intercourse does not contravene s 58. This article respectfully questions the learned judge's decision.

In focusing on David Cronenberg's film eXistenZ this paper interrogates the place of cyberpunk and the cyborg in understanding and challenging law's bodies and embodied subjectivities. The genre proves descriptive of the gendered bodies of law's imagination, yet it also contains the possibility of dissolving the prescriptive binaries of law and other discursive fields. The essay works with Donna Haraway's contention that the cyborg in its boundary transgression is a metaphor for gender obsolescence. Relating cyborg theory to law, and noting how law has colonised other discursive fields, the oppositional/binary construction of men's bodies as bounded and safe whilst women's are constructed as fluid and dangerous is examined. To illustrate this the essay considers the industrial bodies of law's imagination, an area which replays this bounded/fluid binary. Reading eXistenZ, the essay attempts to sketch an alternative analysis which recognises and challenges the gendered bodies of law's imagination. In focusing on the issues of permeability, of boundary pollution and fusion, the analysis privileges a recognition of bodies as both bounded and fluid. In this the analysis challenges the construction of gendered bodies within these policies and hence the construction of gender appropriate employment, behaviour and environments.

It is often assumed that a promise is not legally enforceable unless, as a necessary though not sufficient condition, the promise is morally ‘obligatory’ or ‘binding’. If this assumption is correct, or can be shown to be tenable, highly interesting and important things follow for both legal and contract theory. Promise-keeping emerges as a moral obligation before it is a legal one, the legal duty becoming but a sanctionable extension of the moral obligation, its continuation so to speak by other means. There is thus no fundamental break separating moral from legal promises; for even a legal promise, particularly or most visibly one not covered by existing authority, cannot be fully justified as to why it ought to be kept without support from moral grounds. In the first three sections we therefore consider the moral reasons we may advance in support of an obligation to keep promises. In the last two sections we try to relate these moral considerations more specifically to contract law.

The immunity from negligence enjoyed by advocates has recently been abolished by the House of Lords. The immunity had no statutory basis, but its existence was judicially recognised in 1967, in the case of Rondel v Worsley, and its extent and limits were considered in Saif Ali v Sidney Mitchell and Co in 1978. Since that time, the scope and extent of the immunity has been the subject of much case law. It has also received a great deal of criticism and many have argued for its abolition. This article examines the basis and justifications for advocates’ immunity. It discusses the scope, extent and criticisms of the immunity, the problems with its application, and the reasons for its eventual demise.

The barristers' profession of England and Wales no longer relies on its special reputation to attract the next generation of practitioners. Today, the Bar deliberately sells itself to prospective members. This activity is designed to construct and communicate an appealing self-identity, and to tacitly sort out desirable recruits. It is a significant component of the Bar's enduring status ‘project’. Nonetheless, these processes take place within a complex wider environment, one which calls on the Bar to be competitive and distinct, as well as rational and inclusive. This paper is a unique, qualitative examination of the ways in which the barristers' profession markets itself within this context. It is the product of an investigation of the recruitment initiatives of one of the Inns of Court, targeted at law students. This paper identifies four main strands of the Bar's professional identity at this stage of entry: the Bar as traditional community; profession of excellence; inclusive profession; and a group facing certain challenges to its commanding position. The analysis shows how these multiple, sometimes conflicting, and often ambiguous themes are conveyed and handled. In the process, it reveals areas where the Bar is taking advantage of the current climate, and others where serious fault-lines in the Bar's identity have emerged. Finally, this analysis identifies the sorts of demands these images make of potential members if they want to be accepted into this old and sought-after profession.

Chancel liability is an ancient property right, enforced by a Parochial Church Council, attaching to certain former rectorial lands. It requires a landowner to bear the cost of repair of the parish church chancel. The right poses particular problems for a purchaser, not least because it is hard to discover and is not limited to the value of the land. A recent decision of the Court of Appeal has found that a Parochial Church Council falls within section 6 of the Human Rights Act 1998 as a public authority, and that chancel liability infringes article 1 of the First Protocol of the European Convention on Human Rights. This paper will dispute the rationale used by the Court of Appeal, and in so doing will argue that whilst chancel liability is outmoded, widely regarded as incongruous and does not bear scrutiny in its modern context, it should nevertheless be removed on a principled basis, avoiding unwanted repercussions elsewhere in the law.

The proprietary status of the contractual licence has long been a matter of dispute. In Arnold v Ashbum–Anstult the obiter remarks of Fox LJ signalled a return to orthodoxy in this area of the law. Unless a contractual licence can be supported by facts sufficient to support a constructive trust (and these, too, were restrictively defined by Fox LJ), it will not bind third parties. However, Fox W did not discuss rights over land arising by way of estoppel ( ‘estoppel rights’). The proposition that these can bind third parties has never attracted the controversy that surrounded the proprietary status of contractual licences. Nonetheless, due to the potential overlap between the two types of licence, it is a proposition that needs urgent re-evaluation in the light of Fox W’s views on contractual licences.

English law has recently recognised a tort of misuse of private information through the development of the tort of breach of confidence. This paper considers the conceptual issues that arise in the particular context of cases contesting the privacy of information exchanged in an intimate relationship. The courts have said that the purpose of protecting privacy through the tort is the promotion of individual autonomy. Examining what is entailed in this approach, it is argued that cases involving shared privacies can only be understood as involving the indirect promotion of autonomy through the protection of certain socially sanctioned relationships. A framework of analysis is developed under which the underlying issues are laid bare and through which the reasoning of the courts may be understood and criticised.

I yield to none in my admiration of the draft Criminal Code produced by the Law Commission's academic team, but everyone who studies it will have what he regards as improvements to suggest. So here is my item, relating to the team's proposals for omissions. I think the draft provides too great scope for offences of omission, particularly for serious offences of omission.

This article is concerned with pure omissions. I call them ‘pure’ since omissions combined with action are counted as acts - largely because they are not subject to the peculiar difficulties of penalising omissions.

This paper discusses the extent to which conscientious objections to vaccination qualify for protection under the European Convention on Human Rights (ECHR). Drawing on an examination of the nature of conscience and the ethics of vaccine refusal, it argues that a narrow category of reasons for refusal to be vaccinated can be differentiated from more general ‘vaccine hesitancy’. In relation to conscience objections of this kind, it engages in a systematic analysis of the applicability of the ECHR, both in relation to compulsory vaccination, and so-called ‘vaccine passports’. It concludes that states can – and in some situations must – recognise conscientious objections under the ECHR.

Tasked with enforcing criminal law, public prosecutors worldwide enjoy broad discretion. Existing literature on prosecutorial discretion and accountability tends to discuss the regulation of prosecutorial discretion or analyse the influence of the procedural environment in which public prosecutors operate. This paper focuses on occupational culture as an important factor affecting prosecutorial decisions. It draws particular attention to an understudied aspect of prosecutors’ professional identity: legitimacy and, specifically, self-legitimacy, ie the belief public prosecutors have in their own legitimacy to make decisions in individual cases. The paper presents research findings from direct observations and interviews which reveal a sense of a loss of self-legitimacy amongst Crown Prosecution Service (CPS) staff due to the constant monitoring of their decisions by colleagues and managers. This all-pervasive managerialism, paradoxically, undermines the very legitimacy (and, relatedly, transparency) which the CPS has had to work so hard to develop since its inception.

The law of complicity and conspiracy should neither be used nor be capable of being used to subvert the intentions of Parliament when it framed offences. To explain the ramifications of this simple message will take a little space.

The law of complicity and conspiracy is wide, but it is well known, and normally the legislature may fairly be presumed to intend it to apply to new edicts unless it is expressly excluded. Occasionally, however, the court may feel able to collect from the statute a legislative policy exempting from responsibility people who would otherwise have been accomplices or conspirators.

This paper explores connections between jurisprudential discussion of pain and violence and the methodology of law and literature. Starting with Robert Cover’s work on law’s ‘field of pain and death’, it argues that the theory on which he relied in rejecting literary approaches to law can equally justify a turn to fiction in understanding violence. It then considers the experiential dimension of Austin Sarat’s and Thomas Kearns’s jurisprudence of violence and argues that interdisciplinary perspectives, including relevant fiction, can assist in engaging with the challenges of capturing such experience in textual form. Situating the argument in relation to broader law and literature rationales, the paper finds relevant illustrations in Joseph Conrad’s Heart of Darkness, The Secret Agent and Under Western Eyes. It argues that Conrad’s stories represent dimensions of pain and violence that might otherwise be irreducible to non-fictional textual discourse, whilst also expressing the limits of that representation.

This paper explores Dworkin's ‘law as a chain novel’ analogy and considers the recent work of Dworkin and MacCormick through close scrutiny of two recent judgments of Lord Hoffmann, in Barlow Clowes v Eurotrust International [2005] UKPC 37 and Barker v Corus [2006] UKHL 20. The aim is to examine Dworkin's theory in the context of recent English private law decisions and determine whether Lord Hoffmann's approach to interpretation is consistent with that of Dworkin (as his Lordship has contended in the past). It is argued that Lord Hoffmann's treatment of recent decisions on which he himself sat raises significant questions regarding fidelity, coherence and the institutional structure of the House of Lords.

This paper considers the scope and limits of accessorial liability in the law of torts. It argues that the issue has been under-analysed, in part because such liability is encompassed under the label of ‘joint tortfeasorship’. Analysis of the question of accessorial liability needs to focus on two questions: what is the requisite involvement of the ‘accessory’ and what is the requisite mental state of the accessory when committing those acts? The paper seeks to define the precise limits of these two requirements and argues, after an analysis of the English and Australian authorities, that the current tests for accessorial liability, in rejecting liability for ‘mere’ assistance, are too narrowly stated.