The law of negligence invites scepticism, and it has attracted it from many sources. A brief survey of the tort's problems will indicate how broad the reasons to be sceptical have become—and how unusually broad the sources of that scepticism are.

The possibility that defendants may plead that, through no fault of their own, they lacked the capacity for free agency at the time of the alleged offence, raises the most fundamental issues of principle in the criminal law. The recent decision in R. v. T gives fresh impetus to a full discussion of those issues. In the course of this article we will see that the law is ill-equipped to deal with the full variety of kinds of involuntary lack of capacity, as I shall call it, that ought wholly or partially to excuse. In this the law is hampered by the partial and ill-defined character of its understanding of how people identify harmful conduct for which they were (not) responsible, and by the related fact that it can deal with involuntary lack of capacity only through the blunt instrument of acquittal on the grounds of insane or non-insane automatism. Through enriching the theoretical underpinnings of the law's conception of the scope for pleas of involuntary lack of capacity, and giving the judiciary a more sophisticated armoury of remedies to deal with them, it is in fact possible to sift out the deserving from the undeserving amongst such pleas in accordance with workable principles.

Conversion a peculiartort,1 boasts an equally idiosyncratic measure of damages. Other torts—and this includes torts involving interference with property, such as trespass or negligence—are about compensation: at least in principle, the plaintiff recovers, and recovers only, his loss 2 and even this he only gets subject to the principles of mitigation of damage and (normally) contributory negligence. Conversion, by contrast, seems to break all these rules. The claimant generally recovers not his loss 3 but the worth of the thing converted, 4 losing in the process, by virtue of a rather clumsy balancing rule, any inter rest he may have had in it. 5 Contributory negligence is disregarded, even in the case of claims for special damage (indeed, this is confirmed by stature 6); there is no general requirement of mitigation of loss; and even the normal rules of causation are substantially modified, 7 in that—at least in some cases—there is apparently no requirement that the plaintiff show a causal connection between the defendant's act of conversion and any loss suffered by him.

A structured settlement is a new way of paying common law damages for personal injury or death. It has received strong support from the judiciary and a very favourable response from the Law Commission in its recent consultation paper. The defendant's insurer, usually after having informally agreed a lump sum figure with the plaintiff, will agree to convert part of the damages into a series of periodic payments. To fund the arrangement the insurer purchases an annuity from a life office. The payments are “structured” to meet the individual's needs and are free of tax in the plaintiffs hands. This is because the Revenue have accepted that they may be considered instalments of capital rather than income. In return for making this arrangement the insurer will bargain for a discount on the conventional lump sum figure. Although the first structure was put in place as long ago as 1981, they were not used in other than a few isolated cases until 1991. Now there are almost two hundred of them, and the annuity market, worth £30 million last year, is expected to grow rapidly. Their increasing use constitutes the most radical reform of our damages system effected in recent years.

A court may be confronted by a lack of temporal coincidence between actus reus and mens rea but nonetheless impose liability because on analysis the coincidence requirement is held to be satisfied in form or in substance. The situation may arise in two ways. There may, as in R. v. Miller,1 be initial blameless causal responsibility followed by a culpable failure to avert or mitigate the consequences of the initial conduct. Or, as in R. v. Le Brun,2 there may be conduct with the mens rea required for the offence charged, but to no relevant causal effect, followed by a non-culpable causing of the actus reus of the offence. It will be contended that in these two categories of case blameless causal agency is apt to play too prominent a role in the imposition of liability for what may be very serious offences.

Are the Cambridge colleges “constituent colleges” of the University? This seemingly esoteric question has recently become of some practical importance. University Commissioners, appointed Pursuant to section 202(1) of the Education Reform Act 1988, have the duty of modifying the Statues or other instruments of government, of many, but not all, university institutions, so as to ensure that, whatever may have been the position hitherto, each of them has, for all future appointments, the power to dismiss members of its “academic staff” on grounds of redundancy, or for “good cause” (as defined in section 203(2)). Whether a university institution is subject to having its Statutes thus modified in ways which it might not have chosen for itself, in order to facilitate the “restructuring” of its academic activities, and the removal of “dead wood,” turns on whether it is a “qualifying institution,” as defined in section 202(3):

(a) any university or other institution to which during the period of three years beginning 1 August 1987, grants in aid are or have been made by the Universities Funding Council, or by the Secretary of State acting on the advice of the University Grants Committee;

(b) any constituent college, school or hall or other institution of a university falling within paragraph (a) above.