An initial reading of EU competition law jurisprudence and literature may suggest that there might be a competition-related freedom in the EU, expressed along the lines of ‘freedom of competition’ or ‘freedom to compete’. If competition is to be protected as a ‘freedom’ rather than merely as a ‘policy’, what this freedom involves should be established. It is important to establish the role of ‘freedom’, since it has been argued that EU competition law is a product of or has been significantly influenced by ‘ordoliberalism’. Under ordoliberalism, protecting the ‘economic freedom’ of market actors is the aim of competition policy. This paper examines the entire jurisprudence of the EU Courts to establish the role of ‘freedom’ in EU competition law as perceived by the EU Courts. This inquiry establishes whether ordoliberalism has so fundamentally influenced the jurisprudence that welfare-based objectives cannot be adopted as an/the objective of EU competition law. This is the first such comprehensive study regarding ‘freedom’ in EU competition law. The paper demonstrates that there is little quantitative or qualitative support for the ordoliberal argument when one considers the relevant jurisprudence. A quantitative analysis of the case-law and in particular the historical trend raises serious doubts concerning the validity of the conventional ordoliberal-influence thesis.

This paper explores the role of ulterior intention (and ulterior mens rea more generally) within the criminal law. Divided into three sections, we first question the role and location of ulterior mens rea within the offence elements of acts, circumstances and results. Concluding that such accommodation is conceptually unsound, we highlight the problems this has caused in the context of inchoate liability, where the separation of elements is now essential to the application of the law. Central to this discussion is the problematic attempts case of AG Ref (No. 3 of 1992) [1994] 1 WLR 409. We contend that best way forward is to recognise a new ulterior mens rea element. Such an element has the potential to maintain conceptual coherence between offence elements and resolve substantive problems arising in the context of inchoate liability, as well as creating a new method for limiting inchoate liability (and infinite inchoate liability) from the potential for over-criminalisation.

Civil forfeiture is playing an increasingly prominent role in the fight against organised crime. While this tool is attractive to law enforcement agencies, it does give rise to concerns under Art 6 of the ECHR. Such proceedings ought to attract the full range of enhanced procedural protections inherent in the criminal process. Even if the Strasbourg Court decides otherwise, there is an argument that the presumption of innocence ought to apply where civil forfeiture proceedings are instituted against a person subsequent to that person being acquitted in criminal proceedings. The Strasbourg jurisprudence, though, is permeated by confusion and inconsistency, which does not inspire confidence that the rights of the individual will be protected. The final section of this paper, then, considers whether civil forfeiture represents a proportionate response in the fight against organised crime. Ultimately, though, given lack of information on such crime, we cannot provide an answer either way – what can be said, though, is that civil forfeiture has had a significant impact on the rights of the individual.

The European desire to ensure that bearers of EU rights are adequately compensated for any infringement of these rights, particularly in cases where the harm is widely diffused, and perhaps not even noticed by those affected by it, collides with another desire: to avoid the perceived excesses of an American-style system of class actions. The excesses of these American class actions are in European discourse presented as a sort of bogeyman, which is a source of irrational fear, often presented by parental or other authority figures. But when looked at critically, the bogeyman disappears. In this paper, I examine the European (and UK) proposals for collective action. I compare them to the American regime. The flaws and purported excesses of the American regime, I argue, are exaggerated. A close, objective examination of the American regime shows this. I conclude that it is not the mythical bogeyman of a US class action that is the barrier to effective collective redress; rather, the barriers to effective, wide-ranging group actions lie within European legal culture and traditions, particularly those mandating individual control over litigation.

The Australian government has launched a consultation on the possible reform of domestic contract law. The Attorney-General's Department is currently seeking stakeholder views on the need to reduce inconsistencies and/or remove outdated rules, and on ways to improve legal certainty generally both for businesses and consumers alike. Its current discussion paper, though open-ended as regards next steps, appears to be talking the language of simplification and coherence that has resonated particularly in the EU for well over a decade. Yet, the ongoing, high-profile project aimed at delivering a more coherent and uniform contract law for Europe's internal market has to date proved controversial, and recent concrete initiatives have generated much adverse commentary, particularly from law-and-economics scholars. The European experience therefore offers a series of signposts but equally a number of hazard markers for the Attorney-General's Department. Indeed, many of the broad assumptions underlying developments in the EU rest on weak foundations. The European institutions have further followed a number of dead ends in the pursuit of ‘coherence’ that ought reasonably to be avoided. This paper explores potential risks underlying the current Australian reform process and offers a number of suggestions on a possible way forward.

This paper challenges the prevailing assumption that the directors' duty to act for proper purposes under s 171 (b) of the Companies Act 2006 is well-grounded on authorities such as Howard Smith Ltd v Ampol Petroleum Ltd, Hogg v Cramphorn Ltd, Lee Panavision Ltd v Lee Lighting Ltd and Extrasure Travel Insurances Ltd v Scattergood. It advances the argument that a close analysis of these authorities shows that, despite the use of the language of proper purpose, the primary and central justification for impugning the director's exercise of powers in question is that an implied term of the company's constitution was contravened. Given that case-law support for the proper purpose duty is at best overstated and at worst misconceived, a consideration of whether future cases concerning whether directors have breached their duties should be decided on the basis of whether an implied term of the constitution has been contravened under s 171(a), instead of whether directors have exercised their powers for proper purposes under s 171(b), is warranted. It is submitted that deciding cases based on implied terms under s 171(a) is more defensible because: (i) high authorities such as Attorney General of Belize v Belize Telecom and Equitable Life Assurance Society v Hyman endorse the use of implied terms as a technique for controlling the exercise of discretionary powers conferred on directors; (ii) a principled approach for implying terms can be derived from these authorities; (iii) there are safeguards that are built into the doctrine of implied terms; (iv) the application of the improper purpose doctrine gives rise to perennial problems; and (v) that doctrine is based on a fallacious conceptual justification.

The assertion of contractual rights may be defeated by the illegality defence, not because their creation is offensive to public policy but by reason of an illegality that ‘taints’ these rights. To date, no analytical framework has been developed for understanding how these tainting rules are connected to one another. The Tainting Illegality Framework (TIF) presented in this paper seeks to fill this gap in current legal scholarship by exploring, first, the linkages between the rules by which contract rights are tainted and, secondly, the theoretical underpinnings that explain the existing tensions and that will continue to shape the law in this area. The suggested analytical approach enriches and increases the sophistication of the current approaches by considering how their application is shaped by considerations of proximity and the nature of the contaminating illegality. The framework recognises the value of the existing rules, and seeks to enrich the analytical approach by suggesting how their application can more transparently reflect the policy rationale for applying the illegality defence.

This paper evaluates the role being adopted by the European Court of Human Rights when confronted with claims arising from the extreme restriction of access to abortion services in certain Member States. It will be argued that in response to such claims the Court has been prepared to find that the suffering of the applicants can be captured as forms of rights violation, but it has sought to avoid taking a stance as to foetal life, leading it to adopt a highly deferential approach and to avoid the substantive issues at stake, of protection for female reproductive health, dignity and autonomy, in favour of focusing mainly on procedural ones. Having considered such issues as the missing gender-based aspects of the abortion jurisprudence, this paper concludes that its restrained and largely procedural stance has enabled the Court to provide some limited protection for women, on healthcare grounds, but that the opportunity to recognise that highly restrictive abortion regimes systematically and persistently create especially invidious discrimination based on gender has so far been missed.

The reform of the common law ‘derivative action’, by the statutory ‘derivative claim’ in Pt 11 of the Companies Act 2006, was long overdue. Many of the common law's most intractable problems, however, lay not with the derivative action itself, but rather with the law governing the ratification of breaches of duty. The source of many of these problems lay in the distinction the law sought to draw between fraudulent and non-fraudulent breaches, and the different consequences attached to each category of wrongdoing. The Companies Act 2006 was a timely opportunity at least to resolve the confusion within the law, and ideally to adopt what has been termed a ‘voting based’ approach to ratification. Sadly, the Act did neither, preferring instead to retain the common law largely untouched. Moreover, as a careful analysis of the Act itself shows, the modest changes it did introduce necessarily preserve the common law's distinction between fraud and non-fraud, and the uncertainty to which this gives rise. The paper concludes with an examination of Franbar Holdings v Patel, which illustrates clearly the shortcomings in the law's limited reforms.

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.

This examination of this case from the perspectives afforded by State Papers in the respective National Archives shows the anger felt in British political and official circles reflected in its reaction, strategy and tactics. It illuminates the roles of the Commission of Human Rights in seeking to effect a friendly settlement. The case enabled Ireland at relatively little cost to do, and to be very visibly seen to be doing, something to help the Nationalist minority community in Northern Ireland, thus fulfilling a role as its protector and assuaging an outraged Irish public opinion, while furthering just governance in Northern Ireland and promoting unification by consent.

This paper, through doctrinal analysis of the relevant case-law, examines the extent to which the prevention of fraud justifies equity's imposition of trusts that arise out of parol agreements. The authorities reveal that although there are a variety of circumstances in which equity will operate in such a manner, the nature of the fraud that prompts equity's intervention is always the same. Furthermore, it is argued that, since very early times, these trusts have been regarded as what are now best described as constructive trusts, and that all such trusts are enforced pursuant to a coherent doctrine of equity.

Protocol 16 ECHR will provide for an extension of the advisory jurisdiction of the European Court of Human Rights (ECtHR), enabling highest national courts to request advisory opinions on questions of principle concerning the interpretation of the European Convention on Human Rights (ECHR) or its protocols. This extension of the ECtHR's advisory jurisdiction aims to achieve two goals: a reduction in the ECtHR's excessive docket, and the enhancement of dialogue between the ECtHR and (highest) national courts. While the aims of this reform initiative are laudable, we argue that Protocol 16 is likely to fail to achieve its objectives. Our analysis suggests that rather than facilitating the Court's adjudicatory function, extended advisory jurisdiction has the potential to impact on the Court's constitutionalist function in a manner that can be better achieved through the Court's contentious cases. The burden that this procedure will place on the Court's already overstretched resources would risk delays to contentious cases and potentially undermine judicial comity should requests for advisory opinions be declined. Furthermore, evidence of ‘constructive’ dialogue between highest national courts and the ECtHR is emerging in contentious cases without the need for a reformed advisory opinions mechanism. Rather than achieving its objectives, Protocol 16 risks exacerbating the Court's backlog and nullifying the positive effects of advisory opinions on dialogue.

Following a century of legislation about film and the film industry in the UK, and the latest in a series of reports on ‘film policy’, this paper investigates the relationship between law, policy and film. Case studies on the definition of ‘film’ in a time of technological and cultural change consider the privileged position of the cinema in terms of censorship and tax, including the new phenomenon of ‘alternative content’; that is, live relays of theatrical performances. Institutional change is assessed and criticised, particularly the abolition of the UK Film Council and the steady move from statute to executive action. The paper sets out a case for the role of the state to be set out in legislation and the cultural consequences of legal definitions to be taken more seriously.

It is over 10 years since the Court of Appeal confirmed the legitimacy of the public interest defence in copyright law in Ashdown v Telegraph Group Ltd. However, remarkably little is still known about the defence's function and scope. Indeed, acknowledgement of its unfathomability has become something of a commonplace of copyright jurisprudence and scholarship. This situation contrasts sharply with the position in other related areas of law, such as breach of confidence and defamation, in which courts have made dramatic strides in recasting doctrine to protect ‘public interest’ disclosures. Developments in EU copyright law have also plunged the defence into a renewed crisis of legitimacy. The time is therefore ripe for a reconsideration of the role of the public interest defence in UK copyright law. In this paper, an attempt is made to understand its implicit rationale and scope. It is argued that the existing jurisprudence reflects a persistent concern about copyright's potential to subvert policy outcomes generated by alternative regulatory systems and that the defence is to be viewed as a form of pre-emption doctrine, allowing courts to avoid the explicit rules established under the CDPA in circumstances in which their application would frustrate the outcomes of other more appropriate forms of regulation.

At the heart of the voluntary corporate governance code in the UK and elsewhere is the concept of ‘comply or explain’. It provides that a company is to comply with a code's provision; but if it does not do so, then it is to state that it does not and explain why it does not. There is no provision in the UK for any statements by companies to be assessed by any regulatory body. It is incumbent on the markets generally and the company's shareholders specifically to determine whether the response of the company to code provisions does enough, and then to take some action if they do not. The aim of comply or explain is to empower shareholders to make an informed evaluation as to whether non-compliance is justified, given the company's circumstances. This paper assesses whether the present scheme, which relies on the stewardship of shareholders and the efficiency of the markets, should continue, or whether a regulatory body should be empowered to determine whether companies are in fact complying with code provisions or, if not, whether they are providing adequate explanations for not complying.

The landmark decision of Gillick v West Norfolk Area Health Authority was a victory for advocates of adolescent autonomy. It established a test by which the court could measure children's competence with a view to them authorising medical treatment. However, application of the test by clinicians reveals a number of ambiguities which are compounded by subsequent interpretation of Gillick in the law courts. What must be understood by minors in order for them to be deemed competent? At what point in the consent process should competence be assessed? Does competence confer on minors the authority to refuse as well as to accept medical treatment? These are questions which vex clinicians, minors and their families. A growing number of commentators favour application of parts of the Mental Capacity Act 2005 to minors. In this paper, the limitations of this approach are exposed and more radical reform is proposed.

In the pantheon of approaches open to participants in the pacific settlement of disputes, good offices holds a noteworthy place. The evolution of good offices over the past century is concurrent with a trend of considerable transformation within international law, including – amongst other changes – a move away from a state-led legal order, including in good offices following the emergence of the heads of international organisations as its prime users, and a process of legalisation and specialisation within the subject that has entirely altered its character. These changes have led to a redefinition of good offices that stresses the actor carrying out the role above the form that it takes. To accompany these changes in practice, there is a need for a transformation in the legal analysis and definition of good offices. One potential option in achieving this end is Bell's lex pacificatoria. If good offices is to continue to play a significant role in the settlement of violent conflicts, a fully developed legal analysis is necessary to grasp both its historical development and its potential future role.

This paper makes two claims. First, it claims that there are various trends within academic law that discourage legal scholars from learning about their predecessors. These trends are explained. Secondly, it claims that there are a number of benefits which could flow from addressing this neglect. Several of these benefits have been acknowledged elsewhere. For example, some scholars maintain that ideas are best treated historically before being dealt with analytically. The more scholars read whole bodies of their predecessors' works, the better their interpretations and understandings of such works become, thus strengthening the intellectual integrity of the discipline. While agreeing with this argument, the purpose of the second section of this paper is to articulate other, perhaps less obvious, benefits. It is argued that by learning about a wider range of past academic endeavour, legal scholars are encouraged to challenge existing notions of academic standing and consider not only what the legal academy has become but also what it ought to be. Learning about scholarly predecessors could help scholars better contextualise current challenges. Such learning could be empowering in the context of a discipline whose scholarly practices have meant that there has been little reason to look to the past.

Until 1925, there was a common law presumption that a wife committing an offence in her husband's presence did so as a result of marital coercion. However, when an upper-class wife facing prosecution with her husband for a betting fraud in 1922 successfully relied upon the defence, there was a public outcry against a doctrine that was perceived as reinforcing the ancient concept of a wife as her husband's chattel. It is argued that the abolition of the presumption, but not the doctrine itself, in the (still in force) Criminal Justice Act 1925, s 47, while reflecting changes towards a more companionate style of marriage, was primarily driven by the objectives of predominantly middle-class women's organisations. Whether the change benefited working-class wives at the time is, however, more problematic.