Why does the mens rea of attempt require intention even though some lesser state of mind will suffice for the completed offence? What is the meaning of ‘intention’ in this context? Is intention required for all elements of the crime attempted or only for some? Can one draw a distinction between circumstances and consequences in this connection? Can crimes of negligence or of strict liability be attempted? Why do ‘impossiblc’ attempts cause such difficulty? Is there any meaningful distinction to be drawn between Anderton v Ryan and Shivpuri, or was Shivpuri the last word on the matter? It would be presumptuous to suggest that this article was the answer to all these questions: nevertheless it is suggested that light can be thrown on them by standing back and looking at the nature of a criminal attempt. The key to these and other puzzles, it is suggested, can be found in two concepts, the analysis of attempt as a crime with a missing element, and the notion ofintention as distinct from knowledge or foresight of consequences as stressed in Moloney and more recently by the House of Lords in Hancock and Shankland.

This paper re-examines the Orientalist view that Islamic criminal justice operates without any constitutional protections for the individual. It takes the works of Noel Coulson as representative of the canon and subjects them to critical scrutiny. Rather than mimic Orientalist methods of analysis, the author integrates the views of a contemporary, but traditional Islamic scholar, and demonstrates that an accused receives similar, if not more, protection than in a secular, Western tradition.

This article provides a general overview, and analysis of the litigation surrounding General Augusto Pinochet's detention in London in 1998 and the subsequent attempts to extradite him to Spain, for trial on charges relating to human rights abuses committed during the period of his militaty dictatorship in Chile between 1973 and 1990. The complicated sequence of events, from proceedings in the Spanish courts (which started in 1996) up to Pinochet's release from British custody on medical grounds in 2000, is examined und the potential consequences of the two substantive House of Lords decisions are explored from a British-based public international lawyer's perspective. The focus of the analysis is not so much on the detailed technicalities of personal immunity in English law: as on the broad concepts of State jurisdiction over international crimes and immunity for such crimes in international criminal law: notable aspects discussed include the future of universal jurisdiction in customary international law and the position of that law in the UK's municipal courts.

It is conventionally argued that because an artificially-intelligent (AI) system acts autonomously, its makers cannot easily be held liable should the system's actions harm. Since the system cannot be liable on its own account either, existing laws expose victims to accountability gaps and need to be reformed. Recent legal instruments have nonetheless established obligations against AI developers and providers. Drawing on attribution theory, this paper examines how these seemingly opposing positions are shaped by the ways in which AI systems are conceptualised. Specifically, folk dispositionism underpins conventional legal discourse on AI liability, personality, publications, and inventions and leads us towards problematic legal outcomes. Examining the technology and terminology driving contemporary AI systems, the paper contends that AI systems are better conceptualised instead as situational characters whose actions remain constrained by their programming. Properly viewing AI systems as such illuminates how existing legal doctrines could be sensibly applied to AI and reinforces emerging calls for placing greater scrutiny on the broader AI ecosystem.

War crimes allegations have dogged the UK military for decades. Yet there is no settled process to deal with them. Different legal responses deployed have all suffered from complaints of unfairness. This paper proposes foundations for a more satisfactory approach based on an existing three-part consensus. First, that norms governing individual and systemic conduct in military conflict are relatively undisputed; secondly, that the state has a non-negotiable investigatory duty should a suspected breach occur; and thirdly, that any investigation should take into account the context within which it is conducted. The paper then advances three propositions: (1) first order principles of practicability, expertise, and investigator independence should provide the non-negotiable foundations of any response; (2) second order or subsidiary principles including promptness, adequacy, reasonable transparency, and respect for basic standards of natural justice should apply when practicable; and (3) a standing institution designed to comply with the first and second order principles would provide a fairer process for all participants (accused, victim and the wider national and international communities) whilst also fulfilling coherence and legal certainty requirements. The paper concludes that current structures cannot fulfil these demands and it explores the basis for a better alternative.

The relationship between a conveyance's validity and its underlying contract has been a classic but unsettled topic for comparative private lawyers over the past three decades. This paper attempts to add positivist and normative observations drawn from property transfer theories and practices in English and Chinese law. A jurisdiction adopting an ‘intent plus’ model does not necessarily recognise a separate intent to convey distinct from the intent in the underlying contract, as exemplified by Chinese law, while a jurisdiction adopting the ‘intent alone’ model does not necessarily deny the separate intent to convey, as exemplified by English law. One advantage for a jurisdiction that takes the separatist approach is its flexibility, so that it can still choose between pure causality, pure abstraction, or context-based abstraction at a later stage. Recent developments show that English and Chinese law are moving towards this approach. As to whether flaws in the underlying contract infect the validity of the conveyance, the English position depends on vitiating factors, whereas the mainstream Chinese judgments tend to be pro-causal. Justifications favouring causality provided in the English and Chinese academia are different, though neither can stand up to scrutiny. The detecting opportunity argument submitted in this paper helps to justify abstraction.

This paper explores the implications of D v Commissioner of Police for the Metropolis [2016] QB 161, a recent decision of the Court of Appeal in which two victims of a serial rapist successfully sued the Metropolitan police for investigative failures relying on Art 3 of the European Convention of Human Rights and the Human Rights Act 1998. The paper reflects upon the extent to which English courts are willing to recognise a duty to investigate within the wider context of civil claims against the police, particularly with regard to failures arising from the investigation of crimes of sexual and domestic violence. The comparative scope of tort and human rights claims is also considered, along with the evolving jurisprudential trend towards drawing a firm line between the two kinds of claim.

This paper examines the law of fixtures and chattels which governs the circumstances in which items of personal property that are attached to land become part of that land. Whether a chattel has become a fixture is crucial in a range of contexts including when land is sold or mortgaged. However, the law of fixtures has long garnered a reputation for complexity and obscurity; a position that endures today. Through examination of historical accounts and decided case law, this paper explores the reasons for this reputation; identifies the central deficiencies and defects inherent in the law and argues that the existing approach is anachronistic, inconsistent and incoherent. Building on this, the paper concludes by proposing a new framework for rationalisation and reform which would bring long-overdue certainty and clarity to the law in this area.

A trustee who has accepted trust obligations can retire from his trusteeship in four ways: (i) by virtue of the trust instrument which expressly or impliedly authorises him to do so; (ii) under s 36 of the Trustee Act 1925; (iii) under s 39 of the Trustee Act 1925 and (iv) under s 41 of the Trustee Act 1925, ie by permission of the court.

In regard to retirement under s 36 which provides for non-judicial appointment of new trustees, it is widely accepted that a trustee may so retire only by the valid appointment of another trustee in his place; retirement without replacement is only possible under s 39 and that would require consent to the retirement. An examination of the relevant case law reveals that it assumes rather than establishes the widely accepted view; but more importantly the effect of legislative changes culminating in the present s 36 removes the most probable reason for the view so that the formulation for it has, so to speak, disappeared.

Any project to draft a criminal code has to compromise between the desirable and the politically possible. It may be that the draft now produced by the Law Commission, or something like it, is the best that can safely be backed, though the contrast between it and the American Law Institute's Model Penal Code (which also had to take account of political realities, and yet has been adopted in many States) is a painful reflection on our stodginess. It is hard to avoid the impression that the Law Commission have been too cautious in their approach, leaning too much in favour of bare restatement of the existing law and against modifications that experience or reflection show to be necessary.

Natural law is discussed by almost every modern writer on jurisprudence; but with a few exceptions - of which John Finnis' Natural Law and Natural Rights is the most substantial - the impression given is that it is of historical interest only, that it has in some way been discredited, or at least superseded, by legal positivism. The implicit idea - and here legal positivism borrows from Comte - is that natural law represented some earlier ‘metaphysical’ stage which was then followed by ‘scientific’ legal positivism. This account requires the existence of a natural law theory that dominated juristic and philosophical thinking until the eighteenth century, when it was overthrown by Hume and Bentham. Hume, the story goes, found the decisive argument against the natural law theory; while Bentham created the new theory oflegal positivism. The argument Hume discovered was that ought cannot be derived from is; and this, it is widely supposed, is fatal to all varieties of natural law.

The use of proprietary estoppel to make or support claims to property is now common. Case-law tells us that the concept of unconscionability is central to a successful claim, but little guidance is provided as to what ‘unconscionability’ means or how it is to be established. It is often assumed rather than explained. This paper argues that unconscionability in fact has a reasonably clear meaning within the law of proprietary estoppel and that it can be used to define and confine proprietary estoppel within reasonably clear boundaries. It seeks to explain that proprietary estoppel is at heart an antidote to a lack of required formality in the creation or transfer of property rights and, consequently, that the proper meaning of unconscionability is linked to these formality requirements. Unconscionability is therefore not a cover for unregulated judicial discretion, nor a loose term to describe a general sense of unfairness, but a concept which can be used to discriminate objectively between valid and invalid estoppel claims.

Much academic work continues to operate within the cramping and pervasive spirit of a black-letter mentality that encourages scholars and jurists to maintain legal study as an inward-looking and self-contained discipline. There is still a marked tendency to treat law as somehow a world of its own that is separate from the society within which it operates and purports to serve. This is a disheartening and disabling state of affairs. Accordingly, this article will offer both a critique of the present situation and suggest an alternative way of proceeding. The writer recommends a shift from philosophy to democracy so that legal academics will be less obsessed with abstraction and formalism and more concerned with relevance and practicality. In contrast to the hubristic and occasionally mystical aspirations of mainstream scholars, it presents a more humble depiction of the worth and efficacy of the jurisprudential and scholarly project in which ‘usefulness’ is given pride of place. Of course, these fundamental charges are not applicable to all legal scholars. Many scholars are engaged in work that not only challenges the prevailing paradigm of legal scholarship, but also explores exciting new directions for legal study. It will be part of the essay to acknowledge those contributions.

One of the more vexed questions for tort lawyers in recent times has been whether recovery in negligence lies for the what has been described as the ‘loss of a chance’. The exact definition of ‘loss of chance’ is unclear, but it is generally accepted that it refers to the loss of an opportunity to obtain or receive a desired outcome; for example, recovery from a personal injury. Accordingly, where a patient receives negligent medical treatment in circumstances where, even if the treatment was properly carried out, that patient might not have been cured it is said that the patient has lost the chance of being cured as a result of the treatment.

This paper attempts to analyse the extent to which elements of the criminal law admit uniform definition across offences, and the implications of that question. That debate contributes to recent scholarship on the scope, purpose and content of the general part. I argue that there are elements which can be defined uniformly, elements which cannot be defined uniformly and elements which, although they are subject to variation depending on offence context, ought to be considered in general by the courts. The considerations that are important in thinking about uniformity are outlined in each of these cases. This has implications for the way in which we think about the general part. Generality is a question of both degree and kind. Consequently, the scope, purpose and content of the general part are more complex than has previously been thought. In the final section I sketch some of the implications that this analysis of the general part might have for methodology generally and, in particular, for social theory.