Given the importance of the case, it is unsurprising that the House of Lords should reach so rapid a decision in R. v. Director of Public Prosecutions, ex p. Kebilene [1999] 3 W.L.R. 972 (on appeal from the Divisional Court, noted at (1999) 58 C.L.J. 468). It will remembered that the Divisional Court granted a declaration that the D.P.P.'s decision to continue his consent to prosecutions under the reverse onus provisions of the Prevention of Terrorism Act 1988 (P.T.A.) was unlawful. According to the lower court, these provisions were in irreconcilable conflict with Article 6(2) of the European Convention on Human Rights which provides that: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.

The applicants in R. v. Secretary of State for the Home Department, ex p. Simms [1999] 3 W.L.R. 328 were convicted murderers whose applications for leave to appeal had been refused but who continued to protest their innocence. To this end they gave interviews to investigative journalists, hoping that this would ultimately result in their cases being referred back to the Court of Appeal. However, paragraph 37 of the Prison Rules 1964 provides that professional visits by journalists to prisoners should not generally be allowed and that any journalist wishing to visit a prisoner qua relative or friend must undertake not to publish anything disclosed during the visit. Paragraph 37A stipulates that if, exceptionally, a journalist is permitted to make a professional visit, he must undertake to abide by any conditions prescribed by the prison governor. In the instant case the prison authorities, pursuant to a Home Office policy directing prison governors to impose a blanket ban on all visits by journalists in their professional capacity, refused to permit further visits unless paragraph 37 undertakings were forthcoming. Their Lordships accepted the applicants' argument that this constituted unlawful interference with their entitlement to free expression.

In the course of rejecting a domestic challenge to the Ministry of Defence's policy of discharging all personnel found to be of homosexual orientation, members of the Divisional Court and the Court of Appeal hinted strongly that the rule was likely to be condemned in Strasbourg (R. v. Ministry of Defence, ex p. Smith [1996] Q.B. 517, noted at (1996) 55 C.L.J. 179). This prediction was proved correct when the same applicants took their cases to the European Court of Human Rights (E.C.H.R.) in Lustig-Prean and Beckett v. U.K. (Applications 31417/96 and 32377/96) and Smith and Grady v. U.K. (Applications 33985/96 and 33986/96), 27 September 1999, The Times, 11 October 1999.

Question: “D, who is mentally ill, believes that he is Jesus Christ. He breaks down P's front door and belabours him with a snooker cue, in the deluded belief that P is about to crucify him. Having been subdued by five police officers, D is eventually tried on indictment for aggravated burglary and affray. What is his criminal liability?”

One of the most difficult current problems for tort lawyers is the extent to which the normal rules of tort, developed over decades of litigation between private individuals, should apply in undiluted form to local and other public authorities. Most individuals have never seen a child drowning in a puddle or about to walk off a cliff, and would not hesitate to help them if they did, but public authorities, empowered by Parliament, are faced every day with the delicate and expensive task of protecting others from harm. It has become all too apparent, as the courts (domestic and European) grapple with the thorny question of when a common law duty of care should exist in the context of the careless exercise of, or failure to exercise, statutory powers, that the ordinary rules of negligence liability need considerable refinement to operate sensibly in such a political field. Moreover those difficulties and differences do not disappear merely because a tort other than negligence is involved, and this has been amply illustrated in three recent cases, each involving actions against local authorities in the tort of nuisance.

When a court seeks the meaning of a written contract, it meets a barrier on the outskirts of the document, a barrier imposed by the parol evidence rule. Traditionally, if a court wants to go beyond the barrier for a wider perspective of what the document might mean, it requires a permit on one or more of three grounds. The first is “technicality”: that, although the words appear clear, they have a technical meaning that is not apparent without seeking extrinsic evidence. The second is “ambiguity”: that the words are not clear and the ambiguity must be resolved from a wider perspective. The third is “absurdity”: that a literal reading is not just unreasonable but unworkable or absurd and that that reading must be avoided by taking once again a wider perspective. The perspective is one which takes in the purpose and background (also called the matrix) of the document.

It is a well-established principle that banking practice will be taken into account by the courts. The principle makes good sense when examining the rights and duties which arise between the banks themselves, for they are the very architects of such practice. It is open to closer scrutiny when banking practice is relied on to mould the relationship between a bank and its customer who has no control over, and may be totally unaware of, the relevant practice. To say, as Willes J. did in Hare v. Henty (1861) 10 C.B.N.S. 65, 77, that “[a] man who employs a banker is bound by the usage of bankers” is potentially misleading. This half-truth was recently exposed by the Court of Appeal in Turner v. Royal Bank of Scotland plc [1999] 2 All E.R. (Comm) 664, where it was held that a bank could not rely on banking practice to imply its customer's consent to the use by the bank of confidential information in order to give other banks references about his creditworthiness.

It is good to enter the new millennium knowing that some things never change: despite the reforming zeal of our enthusiastic legislators, property law continues to provide scope for profitable litigation. Indeed, a cynic, remembering the mythical hydra, might think that for every legislative clarification, at least two new problems emerge—but in keeping with a seasonal spirit of optimism, this note will not labour the additional difficulties created by the relevant statutory reform.

Mr. Bruton occupied a flat by virtue of a written agreement with the Quadrant Housing Trust. The agreement specifically categorised itself as a “weekly licence” although it did give exclusive possession to Bruton. For its part, the Trust held the flat as licensee from the freehold owner, Lambeth Council, in order to pursue its charitable housing aims of providing temporary and emergency accommodation. By virtue of section 32 of the Housing Act 1985, any grant of a lease by the Council to the Trust would have been ultra vires. Bruton accepted the “licence” from the Trust on this basis, but now alleged that he held the flat on a lease, giving security of tenure and triggering a repairing obligation for the Trust under section 11 of the Landlord and Tenant Act 1985 (implied repairing obligations for short term leases). The High Court had held that the agreement was a licence and this was confirmed by the Court of Appeal, with Millett L.J. noting that it was difficult to see how Bruton could have a lease when the Trust itself held no estate in the land out of which a lease could have been granted: [1998] Q.B. 834, 845. The House of Lords, unanimously, held that Bruton had a lease on a simple application of Street v. Mountford [1985] A.C. 809. The fact that the Trust held no estate in the land was neither here nor there: Bruton v. London & Quadrant Housing Trust [1999] 3 W.L.R. 150.

Bank of America v. Arnell [1999] Lloyd's L.R. Bank. 399, an application for summary judgment heard before Aikens J., illustrates some of the obstacles that a bank must surmount to recover money paid out on a forged cheque purportedly drawn on its customer's account. First, it must show a sufficient interest in the money to entitle it to sue. Secondly, if the payee of the cheque has passed the proceeds to another person, the bank must trace the money to prove that the defendant received it. Thirdly, the bank will typically have to prove the recipient's fault in receiving the money.

When a chargee (a term which we can take for present purposes to include a mortgagee) appoints a receiver or takes other steps to enforce his security, the general rule is that self-interest prevails, so that neither he nor his receiver is required by the law to have any great concern for the interests of the chargor or any other person interested in the equity of redemption (such as the holder of a junior-ranking security) or a guarantor of the chargor's obligations. This is well illustrated by Shamji v. Johnson Matthey Bankers Ltd. [1991] B.C.L.C. 36, C.A. (a chargee is under no duty towards the chargor in deciding whether to appoint a receiver), and Gomba Holdings U.K. Ltd. v. Homan [1986] 1 W.L.R. 1301 (a receiver's duty of confidentiality vis-à-vis the chargee prevails over his duty to give information to the chargor).

Character merchandising is big business and any case concerning its legal protection is bound to arouse considerable interest. This is certainly true of the recent Court of Appeal decision in Elvis Presley Trade Marks [1999] R.P.C. 567, where the character concerned was “the King” himself. Earlier, in the “Ninja Turtles” passing-off case, Mirage Studios v. Counterfeat Clothing Co. Ltd. [1991] F.S.R. 145, the High Court had apparently endorsed the view that the public's awareness of merchandising practices means that it will assume that products carrying the likeness or name of a celebrity (real or fictional) will come from one “genuine” source. This decision, together with the provisions of the 1994 Trade Marks Act which swept away previous anti-trafficking provisions and liberalised the licensing regime, seemed, to many, to herald a new dawn for the protection of character merchandising, However, the Elvis Presley decision suggests that character merchandising in the UK will remain relatively unprotected compared to other jurisdictions.

The apparently straightforward definition of redundancy contained in section 139 of the Employment Rights Act 1996 has generated a disproportionate and confused body of case law. In essence, redundancy pay is payable in three situations: the business disappears (s. 139(1)(a)(i)); the workplace disappears (s. 139(1)(a)(ii)); the job disappears (s. 139(1)(b)). As far as the disappearing workplace is concerned, recent cases have shown the courts taking a more pragmatic approach. The old contractual test laid down in UK Atomic Energy Authority v. Claydon [1974] I.C.R. 128 (where, by my contract, can I be required to work?) has been replaced by the geographic approach (where, in practice, do I work?): Bass Leisure Ltd v. Thomas [1994] I.R.L.R. 104 (E.A.T.) and High Table v. Horst [1997] I.R.L.R. 513 (C.A.). A similar pragmatism can be detected in the House of Lords' ruling in Murray v. Foyle Meats Ltd. [1999] I.R.L.R. 562 concerning the third aspect of the definition of redundancy, the disappearing job (s. 139(1)(b)).

In FitzPatrick v. Sterling Housing Association Ltd. [1999] 2 F.L.R. 1027 the House of Lords by a bare majority (Lords Hutton and Hobhouse dissenting) allowed in part the appeal of Martin FitzPatrick from the majority decision of the Court of Appeal (noted at (1998) 57 C.L.J. 42) to the effect that he was neither the spouse nor a member of the family of his deceased homosexual partner, John Thompson, for the purposes of the Rent Act 1977.

The line between legitimate tax mitigation and illegitimate tax evasion may be a fine one but if it is crossed the consequences can be serious, since tax evasion can constitute the common law offence of cheating the public revenue. The nature of this offence was considered by the Court of Appeal in R. v. Dimsey; R. v. Allen [1999] S.T.C. 846.

The law concerning antisuit injunctions continues to develop, albeit in a conceptually unsatisfying, piecemeal fashion. English courts are increasingly concerned about the problem of extraterritoriality—witness Lord Goff's strictures about comity in Airbus Industrie GIE v. Patel [1998] 1 W.L.R. 686 (H.L.). But their cautious language conceals a readiness to grant relief in novel situations. A recent example is Turner v. Grovit [1999] 3 All E.R. 616, where, in the course of proceedings for constructive dismissal brought by Mr. Turner before an English employment tribunal, his employers sued him in Spain for repudiating his contract of employment. The Court of Appeal unhesitatingly restrained the Spanish proceedings. They were an abuse of process, intended solely to vex Mr. Grovit in the pursuit of his claim before the employment tribunal.

The doctrine of legal professional privilege comprises two categories. The first, “legal advice” privilege, protects communications between client and lawyer for the purpose of eliciting or giving legal advice. The second category, known as “litigation” privilege, concerns communications between a lawyer and a non-party, or a client and a non-party, if made predominantly in respect of litigation, criminal or civil, whether pending or contemplated, and whether in England or elsewhere. An example of this second category is a confidential “sounding” by a client or lawyer of a potential witness.

For centuries, English criminal procedure regarded the “surprise witness” as a legitimate weapon, for the prosecution as well as the defence. In a case in 1823 Park J. complained that the defendant had seen the depositions in advance of trial. “The prosecutor or his solicitor might have access to them, but not the party accused. For what would be the consequence if the latter had access to them? Why, that he would know everything which was to be produced in evidence against him—an advantage which it was never intended should be extended towards him …” (J.F. Stephen, History of the Criminal Law of England (1883), vol. I, p. 228).

Practice directions are made by the courts under a jurisdiction usually called “inherent”. Directions do not have statutory authority but are sometimes used to introduce important procedural innovations. Now, the Civil Procedure Act 1997 envisages that a rule of court, instead of providing for something, may refer to directions, actual or to be made: directions covered by this do have statutory authority.

Practice directions “supplementing” many of the Parts of the Civil Procedure Rules 1998 were issued alongside the rules. Not all of these fall within the Act of 1997, but the “inherent” jurisdiction, which has not been displaced, can justify them. In the result, there are now two kinds of practice direction: some have the authority of statute and others do not. This article examines a confusing situation and makes some suggestions.

A lightly revised version of the Inaugural Lecture given by Profesor J.H. Baker as Downing Professor of the Laws of England on 14 October 1998.