From the Arab Spring and Occupy to the London riots and student tuition fee protests, the disordered crowd has re-emerged as a focal point of anxiety for law makers. The paper examines two recent cases where the UK courts have thought about crowds. In Austin, the House of Lords connected the crowd to an idea of human nature. This essentialist rendering placed the crowd within an old analytical register where it is understood to release a primordial violence. In Bauer, the Administrative Court utilised a very different sense of the ‘crowdness’ of the crowd to uphold the conviction of UK Uncut activists for aggravated trespass. In their novelty and difference, these two mutually exclusive senses of the crowd open an essential question of the relation between law and society. This paper introduces the ‘Law of Crowds’ as a distinctive way to understand the questions of protest, revolt and democracy.

This paper, delivered as the Second Scarman lecture, argues that the role of a judge on the Supreme Court of a democratic state is to protect both the constitution and the democracy. Judges in modern democracies should protect democracy both from terrorism and from the means the state wishes to use to fight terrorism. Judges meet their supreme test when they face situations of war and terrorism. The protection of human rights of every individual is a duty much more formidable in situations of war or terrorism than in times of peace and security. But if judges fail in their role in times of war and terrorism, they will be unable to fulfil their role in times of peace and tranquility. It is a myth to think that it is possible to maintain a sharp distinction between the status of human rights during a period of war and the status of human rights during a period of peace. The paper explores these issues through an examination of the need for a balanced and proportionate approach and by using illustrations from the example of the Israeli Supreme Court, with a focus on the role of judicial review in the ‘war on terror’.

Following the enactment of the Criminal Injuries Compensation Act 1995, a new Criminal Injuries Compensation Scheme came into force, replacing the non-statutory version that was introduced in 1964. The statutory Scheme retained the occasions for compensation but broke the link with common law damages, providing instead for payments to be made on the basis of a tariff of injury awards. But it continued to make payments for loss of earnings, special expenses and additional compensation in fatal cases. Minor revisions were made in 2001 and 2008, but following the government's consultation, ‘Getting it Right for Victims and Witnesses’, a major revision took effect in November 2012. Made largely to reduce public expenditure, this revision substantially limits both the numbers of victims of violent crime to be compensated and the levels of their awards. While this marks a further shift away from the original common law model, the 2012 Scheme remains a unique taxpayer-funded response to victims of violent crime, again prompting the question: why, and to what, extent should the state make financial provision for victims of violent crime that goes beyond welfare? This paper analyses the implications of the government's answer for the Scheme's scope and implementation.

The environmental impact of mass consumerism is a growing concern, with a particular consequence being the production of significant levels of waste goods. Goods are often disposed of whilst still being useable. One proposed method of reducing the environmental impact of the levels of waste of useable goods is freeganism. This paper provides an overview of freeganism, followed by an evaluation of the impact of English criminal law on freeganism. This paper will consider the claim that freegans commit theft. First there is analysis of the possibility that freegans cannot be guilty of theft because they only deal with abandoned property. Although there is considerable strength in this claim, the difficulties with establishing that property is abandoned necessitates the development of an alternative defence. It will be suggested that freeganism is not an activity that is dishonest in a way so as to attract criminal sanction. This argument is based on the structure of the criminal law relating to theft, which has defences based on claims of right, subjective honesty and the considerations of ordinary people (ie jury members). It is concluded that freegans should not be guilty of theft under the current English criminal law.

This paper examines concerns raised by employers about consensual sexual relationships occurring at work. It begins by examining the link between sexual relationships and sexual harassment as a justification for regulating relationships, particularly hierarchical ones, and suggests that the willingness of employers, particularly in the USA, to prohibit or regulate relationships might be motivated by reasons other than a concern for women’s equality at work. Secondly, it argues that although recent changes to the law on sexual harassment in the UK might encourage employers to consider prohibiting or regulating sexual relationships here, there are countervailing legal principles to be considered, such as anti-discrimination law and privacy rights. Finally, it argues that there is a real problem of harassment when relationships end and that sex discrimination law should be directed to ensuring that unacceptable behaviour is not tolerated, rather than prohibiting consensual relationships.

The legal system is not a system of co-ordinate norms, found at one and the same level. Rather, it is a hierarchical structure of superordinate and subordinate legal norms, whose reciprocal relations are illuminated by the structural analysis undertaken by the Pure Theory of Law. The enquiry into the hierarchical structure of the legal system has significant consequences for the problem of interpretation. Interpretation is an intellectual activity accompanying the law-creating process as it moves from a higher level of the hierarchical structure to the lower level governed by this higher level. In the standard case, that of interpreting statutes, the question to be answered is how, in applying the general norm (the statute) to a concrete material fact, one is to arrive at a corresponding individual norm (a judicial decision or an administrative act).

Discretion gives decision makers choices as to how resources are allocated, or how other aspects of state largesse or coercion are deployed. Discretionary state power challenges aspects of the rule of law, first by transferring decisions from legislators to departments, agencies and street-level bureaucrats and secondly by risking the uniform application of key fairness and equality norms. Concerns to find alternative and decentred forms of regulation gave rise to new types of regulation, sometimes labeled ‘regulatory capitalism’. Regulatory capitalism highlights the roles of a wider range of actors exercising powers and a wider range of instruments. It includes also new forms of discretion, for example over automated decision making processes, over the formulation and dissemination of league tables or over the use of behavioural measures. This paper takes a novel approach by linking and extending the significant literature on these changing patterns of regulatory administration with consideration of the changing modes of deployment of discretion. Using this specific lens, we observe two potentially contradictory trends: an increase in determining and structuring administrative decision, leading to a more transparent use of discretion; and the increased use of automated decision making processes which have the potential of producing a less transparent black box scenario.

Patient autonomy is one of the central values in medical ethics. It is generally understood as recognition of patients' rights as free individuals answerable only to themselves. This emphasis on the individual leaves open the question of the position of the patients' ‘loved ones’, that is of families and significant others. The authors examine this question in three areas of law and medical ethics. Organ donation offers an example of preference given by medical ethics to family views, notwithstanding an expressed wish of the deceased to donate, and the legal position protecting such a request. Decisions concerning the treatment of incompetent patients illustrate consideration for the family in medical ethics, but hesitations in both law and ethics in accepting family views once expressed. And the tension between the interests of patients and family members over the access to genetic information usually results in respecting the patient's right to confidentiality. This individualistic perception of autonomy, as adopted by medical law, overlooks the patient's relationships with others and is too narrow to face the complexities of human lives.

For some years now, there has been a growing orthodoxy in EU legal studies which maintains that the EU project is less about achieving uniformity of laws across the Member States, and more about managing flexibility and differentiation. However, for the most part, space for differentiation is recognised only as between states or groups of states. The present paper moves beyond this level to explore the scope for local differentiation, at a sub-state level. This inquiry has been motivated by the recent Horvath judgment, in which the European Court of Justice was asked whether differential implementation by the devolved administrations of the UK of certain EU law obligations was lawful. The paper places these developments alongside other judicial, legal and political developments, to demonstrate a growing recognition of the role of regions within the EU's multi-levelled system of governance, revealing that the EU order is, in some respects, finally catching up with the realities of the rise of devolution and decentralisation taking place across Europe. However, it is submitted that there is further the EU could and should go in recognising, if not a ‘Europe of the Regions’, then a ‘Europe with the Regions’.

This paper investigates how planning regulation constructs the local, encapsulating a locality and prioritising local decision making over regional and national scales. It draws on a case study of the regulation of multiple occupation to make three interrelated points. First, the analysis emphasises the plurality of ‘locals’ and the interrelationships between them. Secondly, the paper explains how the juridification of the local is required to make a locality legally visible. This operationalisation and construction of the local (legally, spatially and socially) must take place before the political logic of localism, the prioritisation of local decision making over other scales of governance, can take legal effect. Thirdly, the paper explains how, once the ‘local’ is legally constructed and can make decisions, this prioritisation of apparently neutral local expertise and knowledge can act to enclose the spatial and social with sometimes powerful exclusionary and regressive effects.

This article examines Stapleton's view that insurance has lacked influence and been no more than a ‘makeweight’ argument in the development of tort liability. Looking at the wider context, the article describes the overwhelming importance of insurers to the litigation system and argues that all cases are affected by insurance practice. It distinguishes the effect of insurance upon judicial fact finding, on the one hand, and the development of common law rules, on the other. It examines the ability of insurers to influence legislation relevant to the tort system. It concludes that, if account is taken of all these areas, insurance has been of vital importance to the law of tort. Without it, the system of personal injury compensation would not have survived. This conclusion is reached even though insurance is largely ignored by the great majority of tort texts.

Recent years have seen a number of developments pertaining to the notion that victims should be afforded a ‘voice’ in the criminal justice system. The theoretical and structural parameters of the adversarial system are not, however, conducive to exercising such a role. For many, conferring procedural rights on victims jeopardises the due process rights of the accused, as well as the public nature of the criminal justice system. In light of the recent decision to roll out the ‘Victims' Focus Scheme’ across England and Wales, this paper explores a number of issues of principle that arise – not least the deeper policy implications of an apparent re-alignment of the normative parameters of the criminal justice system to incorporate the private interests of third parties.

The Land Registration Act 2002 (LRA 2002) has effectively curtailed the law permitting the acquisition of title through adverse possession in relation to most types of adverse possessor, including the paradigmatic urban squatter. While the traditional principles for the acquisition of title through adverse possession enabled a squatter to secure rights in land ‘automatically’ after 12 years, under the LRA 2002 an urban squatter seeking to defend their possession of land in this way must now apply to the Land Registry, who will serve a notice on the registered proprietor alerting them to his or her presence. This procedure provides the landowner with an opportunity to recover possession of the property before the squatter’s occupation has given rise to any claim on the title to the land. On the whole, these reforms have been presented as, and accepted as being, wholly justified in the context of a modern regime of ‘title by registration’. This paper argues, however, that the reform of adverse possession also implements a contentious moral agenda in relation to advertent squatters and to absent landowners. While these provisions of the LRA 2002 will have important practical and philosophical consequences, the Law Commission has attempted to close off any prospect of further debate on the subject, without explicit consideration of current social and housing issues associated with urban squatting, or of the matrix of moral issues at stake in such cases.

This article considers the use of comparison in establishing multi-ground claims of intersectional discrimination. Leading examples of test cases from the US and the UK exemplify the challenges in using comparison to establish discrimination against Black women, based on the grounds of both race and sex. These challenges include: the insistence on using a single mirror comparator (viz white men) or the difficulties in choosing multiple comparators from a range of options (viz white women, Asian women, Black men, white men etc); the missing rationale for the selection; and the unwieldiness in actually appreciating the nature of intersectional discrimination based on this exercise. To overcome these, Canadian courts have relaxed the strict requirement of necessarily resorting to comparison for proving discrimination and switched to the flexible approach. However, in practice, flexible approach appears as fastidious as strict comparison in its selection and use of comparators. Thus, neither of the two approaches has been too helpful in supporting intersectional claims. The article argues that instead, a useful way of proving intersectional discrimination is to follow the South African approach of making comparisons contextually: (i) between all relevant comparators, identified in reference to one, some, and all of the grounds or personal characteristics; and (ii) sifting through comparative evidence with the purpose of establishing similar and different patterns of group disadvantage which characterise the nature of intersectional discrimination. This approach brings both principle and purpose to employing comparison and can be especially useful in appreciating intersectional discrimination as based on multiple grounds.

Contract is playing an increasingly important part in the restructuring of the public sector in Britain in the 1990s. The direct providing role of the state is being reduced through the ‘contracting out’ of ancillary and core services in the NHS, central and local government, whilst the policy aim of increasing the efficiency of public sector management involves contract in the operation of internal markets, the creation of specialist agencies with clearly defined functions and responsibilities, the devolution of financial responsibility to budget-holding business units operating in internal trading relationships, and the exposure of internal workforces to private sector competition through compulsory competitive tendering (CCT). However, the widespread adoption of a common ‘language of contract’ to describe processes occurring in these different contexts disguises a variety of meanings and functions.

Following the House of Lords' decision in Purdy, the Director of Public Prosecutions issued an interim policy for prosecutors setting out the factors to be considered when deciding whether a prosecution in an assisted suicide case is in the public interest. This paper considers the interim policy, the subsequent public consultation and the resulting final policy. Key aspects of the policy are examined, including the condition of the victim, the decision to commit suicide and the role of organised or professional assistance. The inclusion of assisted suicides which take place within England and Wales makes the informal legal change realised by the policy more significant than was originally anticipated.

The concept of a right to the truth is increasingly utilised in different settings to empower victims and societies to find out about past abuses linked to conflict or authoritarianism. Since the last comprehensive study of this topic in 2006, there has been little attempt to draw together the advancements of fragmented practices. Recent developments in European human rights call for a fresh analysis of the right to the truth as a freestanding principle linked to, but separate from, the state duty to investigate. This paper takes stock of the more recent evolutions of the right to the truth and contributes to its independent conceptualisation. The first part investigates whether there is growing consistency between the Inter-American and European human rights systems around the contours of the right to the truth, as linked to survivors’ right to know the past and to access justice (make claims) as an individual and collective matter. The second part broadens the discussion to the status of the right to the truth under international law in light of the ECHR jurisprudence, and considers whether the available legal categories are suited to its formalisation.

The Sex Disqualification (Removal) Act 1919 ended the prohibition on female jurors. This did not mean that English and Welsh juries became representative institutions overnight, however: the property qualifications ensured that juries were still drawn from the top few per cent of the local population; and the 1919 Act expressly permitted trial judges to order single-sex juries where the nature of the evidence required it. The continued existence of peremptory challenges allowed defendants in felony trials to exclude women from their juries whenever they preferred to be tried only by men. Finally, some judges permitted female jurors to excuse themselves from particular trials if they so desired. This paper explores the effects these factors had on the practical enjoyment of the female jury franchise after the passing of the 1919 Act. It finds that the picture is remarkably localised: rates of women serving on juries were very different for the five assize circuits for which adequate records exist (Midland, Oxford, South Eastern, South Wales and Western). By exploring these issues, this paper reveals how flexible the female jury franchise was in its early years, and shows how important local differences were in keeping women off the jury.

This paper addresses a cluster of issues. What is state entrapment? Why is it objectionable? Is it wrong to prosecute the entrapped? What should the court do when the case is brought before it? These questions are intertwined. To know what is wrong with state entrapment, we must be clear about what it is; our understanding of what constitutes state entrapment, with its negative connotation, is shaped by what we think is distinctively wrong with it; and, we cannot know how the court should deal with state entrapment unless we identify the precise problem to which a judicial response may be required. The right response is a permanent stay of proceedings. A stay should be granted because the executive does not come to court with clean hands. It lacks the standing to blame the entrapped for what he or she did, and the state lacks the standing to condemn the person for the same.

The Comedy of Errors, always loved on the stage, has long been deemed less substantial than Shakespeare's ‘mature’ works. Its references to private and public law have certainly been noted: a trial, a breached contract, a stand-off between monarchical and parliamentary powers. Yet the play's legal elements are more than historical curios within an otherwise light-hearted venture. The play is pervasively structured by an array of socio-legal dualisms: master–servant, husband–wife, native–alien, parent–child, monarch–parliament, buyer–seller. All confront fraught transitions from pre-modern to early modern forms. Those fundamentally legal relationships fuel character and action, even where no conventionally legal norm or procedure is at issue. ‘Errors’ in the play serve constantly to highlight unstable and shifting relationships of dominance and submission. Law undergoes its own transition from feudal–aristocratic to commercial forms. Through a theatrical framing device, it thereby re-emerges to remind us that those dualisms, even in their new incarnations, will remain squarely within law's ambit.