Despite the limited exception introduced by statute in 1974, the principle that truth is and ought to be a complete defence to all actions in defamation is typically regarded as self-evident in modern English law. The fact that England stands here against not only the whole of the civilian tradition but also a number of common-law jurisdictions suggests, however, that it is not. This paper, after surveying the history of the principle in English law and the debates that it has spurred in the past, argues that English law is right on this question, but needs to understand more cogently why. This, in turn, requires an examination of the interests protected by the cause of action. It is only if we accept that it is, and is solely, reputation founded in character that the defence of veritas will be secured.

A distinction between the domestic and commercial context is commonly drawn in property law discourse and has been brought into focus by three recent House of Lords’ decisions. The thesis of this paper is that while the distinction is a useful explanatory tool, it runs into difficulties when given legal effect by the courts. There is a definitional problem in understanding what is included within each context. Indeed, the distinction assumes the existence of a dichotomy when, in fact, the domestic and commercial spheres are better seen as a continuum. In Stack v Dowden, the majority of the House of Lords gave legal effect to context and considered that different rules should apply to determine ownership of the home. This paper locates its decision in the broader debate on judicial restraint and creativity. By analogy with current discussion of due deference in public law, it is suggested that, in light of the policy issues involved and the broader ramifications of the decision, insufficient justification was given for the approach adopted by the majority.

This paper concentrates on the ethical tension created by lawyer billing. In particular, it examines the tension between a lawyer's commercial imperative to make a profit and their ethical obligation to promote their clients interest over their own. Conventionally, this conflict is resolved through the lawyer providing disinterested advice on (their own) costs and the client granting informed consent to billing arrangements on that basis. This paper uses empirical data to suggest that notions of disinterested advice and informed consent are deeply flawed when it comes to lawyers' fees. Clients passively consume exploitative practices. As a result, this paper argues that, where possible, regulators should supplant informed consent with an approach requiring simple charging: reducing professional discretion over charging practices and strengthening the market-based regulation of price. This requires a significant simplification of lawyers' fees wherever possible.

The criminal justice system of England and Wales has been subject to a series of essentially ad hoc reforms that depart to a significant degree from its adversarial heritage and represent a threat to fair trial rights under Art 6 of the European Convention on Human Rights. Far from moving closer to the European ‘inquisitorial’ model, as has been suggested by some commentators, criminal procedure is becoming increasingly dominated by managerialist concerns. Intolerance to litigant control is motivated by the desire to increase efficiency and reduce cost, although the replacement of party autonomy in terms of control over the conduct of the case by state power over process corresponds to some degree to the descriptions, in the work of Mirjan Damaška, of the system favoured by ‘activist’ states. However, the financial crisis facing the new government means that the situation is unlikely to be alleviated should the extent of government activity be reduced.

Two recent fatal accident inquiries (FAIs) in Scotland have potentially far-reaching ramifications for educational provision across the whole of the UK. The deaths of two teenage children during the course of outdoor adventure activities led the sheriff in one of those inquiries to recommend a review of the regulatory framework which governs those activities. This call for an across-the-board review means the outdoor education sector – which includes organisations which provide outdoor education for schools groups as well as those offering more adventurous experiences for children outside term time – is now likely to face a degree of scrutiny greater than any it has experienced since the 1993 Lyme Bay disaster.

This paper draws upon research interviews with those who work in outdoor education in some of the more remote areas of Scotland. The data from those interviews indicate that some of the issues that ought to be considered in any such review will not be immediately apparent from reading either the fatal accident inquiries' determinations or the literature which is available either on the Heath and Safety Executive's website or otherwise in the public domain. In particular, it appears that some issues which have only reached a wider audience by virtue of these FAIs have actually been the source of longstanding concerns among the stakeholders, dating back to the mid-1990s when the regulatory framework that came into being in the wake of Lyme Bay was still under discussion. This paper therefore uses the interviewees' responses to help develop a greater understanding of the issues that exist in this particular sector and to illustrate the legal and logistical challenges that it faces.

Gwyneth Bebb gave her name to a landmark case in the campaign to open the legal profession to women. In spite of this achievement, which is often mentioned but rarely analysed, historical accounts have given little or no attention to the woman or the campaign of which she was part; and what happened to her then and later has remained shrouded in mystery. The article finds that her disappearance was due in part to the circumstances of her life, outlined here, but mainly to the tendency of institutional histories, if they acknowledge women’s contribution at all, to present it as a simple (though discontinuous) tale of progress, thereby masking continuing prejudice and inequality. The article argues that women’s lives need to be properly examined to produce a more complete and truthful explanation of how things were, and how they are now.

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.

Throughout the world, the corporate group structure has long proved troublesome to the creditors, and particularly the tort creditors, of undercapitalised subsidiary companies. In the wake of Australia's James Hardie asbestos compensation inquiry, Senior Counsel assisting the Jackson Special Commission, Mr John Sheahan QC, called for the Commission to ‘recommend reform of the Corporations Act so as to restrict the application of the limited liability principle as regards liability for damages for personal injury or death caused by a company that is part of a corporate group...’. Following this call, in May 2008 the Corporations and Markets Advisory Committee released a report on long-tail liabilities, making various recommendations for reform. Separately, legislation was passed making pooling available for insolvent group companies in Australia. This paper examines the long-tail liability suggestions and the 2007 pooling amendments. It will be argued that neither of these is adequate for the proper protection of tort creditors of insolvent subsidiaries. It then considers international alternatives which might satisfy Mr Sheahan's appeal for reform.

In England and Wales, the question of access to information about deceased persons is determined under two separate statutes: the Access to Health Records Act 1990 and the Freedom of Information Act 2000. This paper examines the normative and legal issues raised by access to information about the dead and evaluates the statutory framework. It draws on philosophical and legal sources which support the claim that the dead are owed a moral and legal duty of confidence. However, it also shows that this is not an absolute duty and it identifies the public and private justifications which favour the provision of access to information about the dead. It argues that the current statutory framework is excessively restrictive and that it fails to provide an appropriate context within which interests favouring access may be considered. Accordingly, it argues that the law needs to be reformed and that a specific legislative framework dealing with access to information about the dead should be introduced. The paper concludes by setting out some preliminary suggestions regarding the possible form of such a legislative framework.

Alan Watson's theory of legal transplants was pioneering and innovative. It moved comparative law beyond ideas of legal families and legal systems by providing both a tool and a metaphor for examining hybrid, or mixed, legal systems. However, socio-legal comparativists in particular criticised his approach because of its failure adequately to acknowledge the importance of legal culture in transplant theory. As a hybrid legal system Japan provides an operative laboratory of comparative law. This paper examines jury trial to evaluate Watson's theory. It concludes by offering a new threefold categorisation of legal transplants.

This paper explores the issue of donation of organs from deceased donors for transplantation into a specified recipient. It argues that proper account should be taken of the principles underlying the Human Tissue Act 2004, which grant the donor a form of proprietary control. Three hypothetical scenarios are then used to draw out the implications of these principles for existing regulatory policy and the common law response to excised human organs. The paper concludes that the law should be understood as recognising ownership in organs removed from living and deceased persons and as offering opposition to the prohibition of directed donation that can only be coherently removed by reform of the 2004 Act.

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.

The paper analyses the scheme whereby provincial chief constables, encouraged by the Home Office, could call in the help of Scotland Yard's experienced detectives to investigate serious cases, especially murder, that were considered to be beyond the capacity of the local force to solve on its own. While the scheme was on balance successful in that more than 50% of such call-outs between 1919 and 1928 resulted in convictions, it is suggested that its significance extended beyond the mere profit and loss accounting approach. For the arrangements cast a mirror on many of the conflicts and some of the developments in policing during this period. Thus they illuminated the tension between respect for local, even if inexperienced, police autonomy, on the one hand, and efficiency and expertise on the other; or, more broadly, between constitutional localism and central governmental direction of policing in England and Wales. But with the press campaigning for more efficient use of the scheme, its arrangements actually attested to the favourable prospects, in the late 1920s and 1930s, for inter-force cooperation in the form of national crime prevention schemes (such as that designed to intercept cross-country ‘motor bandits’). It was thus one of the unacknowledged elements in the forcing house for organisational change experienced by British policing before the war.

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.

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.

The ‘elusive’ concept of ‘impairment’ was introduced into the General Medical Council's Fitness to Practise Procedures in 2002. Its function was ostensibly to bring all forms of fitness to practise allegations against doctors under a unifying concept and thereby reduce procedural complexity. This paper strives to illuminate the application of ‘impairment’ of fitness to practise with reference to a year of fitness to practise decision making by the General Medical Council (GMC). It concludes that impairment has brought with it a redemptive style of resolving matters of professional discipline which brings significant benefits to doctors, the patient population and society as a whole, but which can also encourage a contrived exchange of remorse, insight and remediation with further implications for professional integrity and truth.

The English criminal law has not moved with the times – nor with the increasing emphasis on human rights. Legislation still extant goes back nearly 700 years and is barely intelligible. This paper analyses antiquated criminal and criminal procedure legislation and asserts it should be repealed, being superceded by more modern enactments. It also argues for the consolidation of all criminal (and criminal procedure) legislation for the period 1313–1960 into one Act of around 300 sections. This task would not be complex.

This paper examines the concept of environmental justice with particular reference to its development in the UK. The paper analyses the empirical evidence behind environmental justice and argues that, while the body of evidence is compelling, it simultaneously highlights a number of limitations. Moreover, the paper offers an analysis of the multiple responses taken at official and non-governmental organisation levels to environmental justice. The paper argues that often these responses are vague and diverse, and run the risk of rendering environmental justice, as a concept, ineffective. Finally, the paper discusses what role the law may be able to play in shaping environmental justice debates in the UK.

In law and discourse, it has typically been assumed that the religious freedom of state-funded religious schools must trump any competing right to non-discrimination on grounds of belief. For example, the Irish Constitution has been interpreted as requiring the broad exemption of denominational schools from the statutory prohibition on religious discrimination in school admissions. This stance is mirrored in the UK Equality Act 2010. Thus, religious discrimination in the public education context has been rationalised with reference to a ‘liberty-equality dichotomy’, which prioritises the integrity of faith schools' ‘ethos’, as an imperative of religious freedom. We argue that this familiar conceptual dichotomy generates a novel set of absurdities in this peculiar context. We suggest that the construction of religious freedom and non-discrimination as separate and antagonistic values rests on a conceptually flawed definition of religious freedom itself, which overlooks the necessary dependence of religious freedom on non-discrimination. Furthermore, it overstates the necessity, to religious freedom, of religious schools' ‘right to discriminate’. We argue for an alternative ordering of the values of religious freedom and non-discrimination – which we locate within the neo-republican theory of freedom as non-domination.

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.