Among its many provisions, the Criminal Justice Act 1991 contained, in its original s 29(1), a prohibition on the use of previous convictions in the determination of sentences for current offences. This particular provision was the subject of much criticism before and after its coming into effect, so much so that within a year of its implementation it was replaced by a new section which, arguably, could have precisely the opposite effect. What follows is an attempt to chart the short life and sudden death of the original s 29( 1). The importance of such a prohibition to a 'deserts-based' sentencing framework will be discussed and some possible explanations for its removal will be suggested. Some of the implications of the change will also be examined, both in terms of its impact on the coherence of the sentencing framework that remains, and its possible impact on future sentencing trends.

The proprietary status of the contractual licence has long been a matter of dispute. In Arnold v Ashbum–Anstult the obiter remarks of Fox LJ signalled a return to orthodoxy in this area of the law. Unless a contractual licence can be supported by facts sufficient to support a constructive trust (and these, too, were restrictively defined by Fox LJ), it will not bind third parties. However, Fox W did not discuss rights over land arising by way of estoppel ( ‘estoppel rights’). The proposition that these can bind third parties has never attracted the controversy that surrounded the proprietary status of contractual licences. Nonetheless, due to the potential overlap between the two types of licence, it is a proposition that needs urgent re-evaluation in the light of Fox W’s views on contractual licences.

This paper is concerned with one hundred and ten years of legal history. It is a success story. Yet it has, not an unhappy ending, for the end is in the future, but an unhappy present. Markers put down in 1883 and 1983 define the century. The change in question is the modernization of the literature of common law and hence of all the machinery of its interpretative development. Having been kept in shape first by the forms of action and then by a hardening of the doctrine of precedent, in the late nineteenth century the growing mass of case law urgently required to be more rationally ordered and explained. It began to find in the universities the means of achieving that improvement. Analysis, definition and classification, the familiar tools of the university, were brought to bear for the first time on the raw materials of the common law.

Protection of confidential information has two main juridical bases, contract and equity. Where the defendant is or was the employee or agent of the plaintiff he may be subject to an express or implied contractual duty not to use the latter’s confidential information without his consent Other defendants who receive such information knowing or believing it to be confidential, either from the plaintiff himself or a thiid party, may be subject to an equitable duty of like kind

The purpose of this article is to examine the range and scope of compensatory remedies for breach of the equitable duty of confidence. The term ‘damages’ is sometimes used generically to describe these remedies which are several and different from one another in certain respects? albeit difficult to pinpoint exactly.

It has been said that ‘the law of limitation is a subject which peculiarly involves an enquiry into first principles.’ That is particularly true in registered land. Section 75 of the Land Registration Act 1925 grafted into registered land a concept inimical to it, namely the possibility of defeat by adverse possession of a flawless documentary title. That endeavour has on the whole been successful; but there remain problems, concerning such fundamental concepts as trusts, the nature of legal estates after 1925, and ‘title absolute.’ This article seeks to explore those problems; at the same time, the opportunity will be taken to look again at the decision in Spectrum Investment Co v Holmes and to suggest that it need no longer be regarded as a major source of difficulty.

Over the years, the genius of the common law lay in its ability to adapt old laws to new circumstances, to remake itself in a new image which reflected the concerns and needs of the time. In this century much of our thinking about the law of torts has been shaped by the tort of negligence, which has been the paradigm of adaptability. Although it was Lord Atkin’s speech in Donoghue v Stevenson that provided the central unifying principle for the subsequent development of the tort, it was Lord Macmillan’s famous dictum that the categories of negligence are never closed which provided much of the driving force for those developments. Liability in negligence shifts the focus of the courts’ attention away from the nature of the plaintiffs interest that has been infringed to the nature of the defendant’s conduct. Once attention moved from the deed itself to the manner of its commission, it gradually became possible for the tort of negligence to seep into almost any arena. The opportunities for human error are manifold, and as the old immunities were removed new areas of liability were established.

Intended conduct is not the only means by which people, for good or ill, make their presence felt in the world. Nonetheless, much judicial and academic learning exists on the meaning of intention in law. In spite of so much learning, however, our understanding of how intention affects the wrongfulness of conduct remains impoverished. The impression given by case law and commentary is that the important issues raised by the role of intention in the criminal law can largely be exhausted by exploration of the distinction between direct and oblique intention: between desired goals and side-effects foreseen as certain in acting. Nothing could be further from the truth. In particular, there is far more richness and complexity in the concept of direct intention itself than has been hitherto realised. In this article, I will focus on two more or less neglected species of direct intention: the intention to try to do wrong, and the intention to expose another to the risk of wrongdoing. An understanding of the moral significance of these kmds of intention enhances our understanding of the nature and scope of criminal attempts and possible offences of endangerment in English law.

The current distinctions between different forms of estoppel are inappropriate and traditional orthodoxy is being challenged by judges and by academics. It is now necessary to recognise that the organising concept for the doctrine of estoppel is unconscionability because the function of estoppel is to restrain injustice arising from unconscionable conduct. The form ofestoppel, known as promissory estoppel, and stemming from the decision in Central London Property Ltd u High Trees House Ltd, is not triggered by the organising concept of unconscionability. It should be regarded, therefore, as an exceptional contractual response, in various situations, to the requirement of consideration. It follows that, in principle, estoppel based upon the concept of unconscionability, may be employed as an independent cause of action. There is ample evidence that this already happens in the context of claims concerning land. This article seeks to demonstrate that estoppel can and should be treated as an independent cause of action in a more general context.

This article is an attempt to add to our understanding of the map of common law obligations. That there is such a thing is an article of faith among those who believe that the common law is based on reason. Any map does three things: it represents a certain area; it enables us to locate any point on that area by providing us with axes of reference (for example, longitude and latitude) and it identifies certain points on that area as significant. The map of common law obligations covers the set of all possible duties. A duty is located in that set by reference to its pattern (its content) together with its origin (the set offacts sufficient to give rise to that duty). The map of common law obligations identifies all the duties which the common law may give effect to by compelling those who are subject to those duties to comply with them.

The House of Lords’ decision in Derbyshire County Council v Times Newspapers Ltd has been widely welcomed as a long overdue development in the common law’s treatment of free speech issues. Eric Barendt interprets the judgment as a judicial recognition of free speech as a ‘quasi-constitutional’ right. In a more exoteric vein, a major article in the Observer bracketed the case with Factortame, Pepper v Hart, and Woolwich Building Society v Inland Revenue in suggesting that an increasingly liberal-minded judiciary was fashioning a ‘silent revolution’ against orthodox principles of Parliamentary Sovereignty.

The overwhelming majority of employees who are members of occupational pension schemes belong to what are called ‘defined benefit’ schemes. These schemes provide for their members to receive a benefit defined by reference to a member’s salary at the date of their retirement or, if they change jobs, the salary paid just prior to their leaving. This article examines the rights of the members of defined benefit schemes. In particular, it considers claims by scheme members that the pension funds which secure their pensions represent their deferred pay, and that these funds are, in some meaningful sense, their property. The article argues that whilst the law of trusts may appear at first sight to lend support to the members’ claims, developments within the law of trusts, coupled with the underlying contradiction in the meaning of ownership in trust law, has made it difficult for the courts to recognise the members’ claims.

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.

The national courts of the European Community are faced with a formidable task. On the one hand, judges are appointed and operate within their own domestic legal order, and derive their authority from their national constitutions. On the other hand, with the advent of the Community and the development of the doctrines of direct effect and supremacy, they have acquired a Community mantle and are responsible for the implementation of directly effective Community rights within the national realm. This paper examines how the role of the national courts has been created, what basis exists for it in the Treaty and the theoretical underpinnings of the role. In short, why are the national judiciary also Community judges: and to what extent can they be truly so?

From within the law school, group personal injury litigation may be approached in various ways. Until very recently it was, indeed, ignored as an irrelevant foreign development: not perhaps ‘it could never happen here’, but at least ‘it hasn’t happened here, yet’. Now that it plainly has happened, it is nonetheless possible to ignore it. The question whether the snail in my ginger beer bottle can give rise to an action is not, in principle, affected by what other people found when they opened theirs; if it is said that in practice it cannot but be affected, the retort would be that the law schools need not concern themselves with the sort of practicalities involved. Indeed, group litigation barely rates a mention in most practitioners’ texts either; so many academics feel excused from considering it all, even as a mere footnote to the general run of cases.

In what circumstances, if any, can a person be held liable in tort for failing to prevent another person from causing harm?

Different legal systems answer the question in different ways. In many US jurisdictions, for example, although theoretically there is a presumption against liability, a great number of categories of citizen (including doctors, bar-keepers and psychologists) are held responsible for the harm caused by others to whom, for example, they have prescribed medicines or served alcoholic drinks or offered advice.

Corporate law — both in the UK and US — remains preoccupied with the separation of ownership and control. Share ownership, the story runs, has become so dispersed in the larger company that control of its affairs has passed from shareholders to managers. It is assumed that managers will have interests which conflict with those of shareholders and will use their control to further the former at the expense of the latter. The orthodox response has been to stress the paramountcy of shareholder interests and to seek ways of compelling management to advance those interests in preference to their own. The urgency with which these prescriptions for company law have been pursued has rather fluctuated, depending upon the wider economic and political climate within which companies operate. Thus, the take-over activity of the late 1980’s created its own excesses, as in the Guinness affair. The subsequent recession, with its effect on profits, caused further strain, exacerbated by rises in executives’ pay and generous severance awards at times unrelated to the companies’ own financial performance. A number of substantial corporate failures or controversies have provided a further impetus.

The problem of how to hold a company criminally accountable for the harm produced in the course of its business activity continues to vex the English judiciary. The attempt to apply conventional criminal law to companies has not been a resounding success. This was perhaps predictable, as the relevant rules and doctrines had been developed in cases involving human defendants. Their transposition to an inanimate organizational entity such as a company was never going to be easy. Not only did the judges fail to rise to the challenge, however, they managed to construe the relevant law in a regressive manner that has all but insulated large companies from criminal liability.

Before Odysseus navigates the rocks on which live Scylla and Charybdis he is lulled by the Sirens, promising advance disclosure of earthly adventures. Forewarned by Circe, he enjoins his crew first to contain him; later (on pain of death) to release him from the mast to which he is bound. Held to his originally expressed wishes, they refuse, and bind him more tightly. In this way, Odysseus creates what may have been one of the first advance directives. Its enforcement illustrates one of the concerns which have latterly been expressed about making binding health care choices, possibly many years before they might take effect

‘People do not always mean what they say; they do not always say what they want; and they do not always want what they say they want. That much is, if not exactly clear, at least uncontroversial. What is controversial is, recognizing this, how to proceed.’

Theoretical discussion of the question of whether and under what circumstances ignorance of law should be a defence from criminal liability has had a peculiar history in Anglo-American law. Commentators have been more convinced that ignorance oflaw should generally not serve as a defence than they have been persuaded by any particular rationale in favor of this rule. When one argument is shown to be unsound, another emerges to take its place, preserving the conclusion intact; the weight of scholarly opinion does not shift to embrace the position that ignorance of law should typically be a defence from criminal liability.