R. v. Lambert [2001] UKHL 37, [2001] 3 W.L.R. 206 and R. v. Kansal (No. 2) [2001] UKHL 62, [2001] 3 W.L.R. 1562 are important decisions of the House of Lords in the field of human rights and criminal justice. Lambert is primarily concerned with a question as to the retrospective effect of the Human Rights Act 1998 in criminal proceedings, and with the question whether a reverse onus provision in section 28 of the Misuse of Drugs Act 1971 is compatible with the presumption of innocence in Article 6(2) of the European Convention on Human Rights. Kansal is primarily concerned with the former question. A majority of the House in Kansal decided that the decision of the majority of the House in Lambert on the issue of retrospectivity was wrong, but nevertheless should be followed.

Challenges to the mandatory life sentence by way of judicial review continue to hit the courts. Among the most dramatic are R. v. Lichniak and R. v. Pyrah [2001] EWHC Admin 294, [2001] 3 W.L.R. 933, where it was argued that the mandatory sentence violated Article 3 of the European Convention on Human Rights (prohibition of torture or degrading treatment or punishment) because it was disproportionate, and that it violated Article 5 of the Convention (right to liberty and security) because it was arbitrary. When Scott Baker J. granted leave to apply for judicial review he ordered that the court should sit both as a Divisional Court and as the Court of Appeal (Criminal Division). Kennedy L.J., giving the judgment of the Court of Appeal, held that “the most attractive route” was for the Court to sit as a division of the Court of Appeal.

Terminally ill with motor neurone disease, Mrs. Diane Pretty wanted her husband to assist her commit suicide. She asked the DPP for an assurance that he would not prosecute her husband. The DPP refused. In proceedings for judicial review she sought an order that the DPP give the undertaking or a declaration that the prohibition on assisted suicide was incompatible with the European Convention on Human Rights.

In B (a minor) v. DPP [2000] 2 A.C. 428 (noted (2001) 60 C.L.J. 26) the House of Lords held that mens rea must be established as regards the age element of the crime of gross indecency with a child under the age of 14, contrary to the Indecency with Children Act 1960. It followed that the defendant in that case, who honestly, but mistakenly, believed that the victim was over 14, was not guilty because he lacked the necessary fault. The Court left open the question whether mens rea also had to be established for the age element of indecent assault committed on a child under 16, but it has had the opportunity to consider this in R. v. K [2001] UKHL 37, [2001] 3 W.L.R. 471

When, the European Court of Human Rights decided in Osman v. UK [1999] 1 F.L.R. 193 that striking out a claim in negligence (in Osman v. Ferguson [1993] 4 All E.R. 344) against the police, for failing to prevent a disturbed teacher injuring a pupil and killing the pupil’s father, amounted to a breach of Article 6 of the European Convention, many domestic lawyers felt that human rights law had gone too far. Article 6 protects the right to a fair and public hearing in the determination of one’s civil rights. The ECtHR did not say that the hearing had not been fair, but that it had not really been a hearing at all. By so deciding, the ECtHR subjected the public policy considerations that had been relied on by the Court of Appeal to strike out the claim to the requirements of legitimacy and necessity which have to be satisfied to justify an interference with Article 6.

Contributory negligence has never been a defence to an action in deceit. Of the dozen or so authorities to this effect, the dictum most often cited is that of Sir George Jessel M.R. in Redgrave v. Hurd (1881) 20 Ch.D 1 at 13–14:

In O’Brien v. MGN Ltd. [2001] EWCA Civ 1279, the Court of Appeal gave a significant decision dealing with the issue of incorporation of onerous or unusual terms.

Director General of Fair Trading v. First National Bank plc [2001] 1 UKHL 52, [2001] 3 W.L.R. 1297 marks the beginning of an evolution in the common law of contract. The House of Lords considered for the first time whether a contractual term was an unfair term under the Unfair Terms in Consumer Contracts Regulations 1994, S.I. 1994/3159 (which implemented Council Directive (EEC) 93/13, now implemented by the Unfair Terms in Consumer Contracts Regulations 1999, S.I. 1999/2083). The case arose when the Director General sought injunctive relief, pursuant to regulation 8(2), to restrain the use of a contractual term.

Mr. Farley’s action for breach of contract against his surveyor gave the House of Lords an opportunity to consider the recovery of damages for non-pecuniary loss (Farley v. Skinner [2001] UKHL 49, [2001] 3 W.L.R. 899). Mr. Farley had been considering buying a house and instructed Mr. Skinner to survey the property. In particular, Mr. Farley asked Mr. Skinner to investigate whether the property was affected by aircraft noise, saying he did not want a property on a flight-path. Mr. Skinner subsequently reported that he thought it unlikely that the property would be so affected. Mr. Farley, having acquired and spent significant sums refurbishing the house, was therefore disappointed to discover that his enjoyment of the property was significantly impaired by the sound of aircraft waiting to land at nearby Gatwick airport.

Jason Costello, who made “something of a living” by doing up and selling cars, was found by the Police in possession of a turbo-charged Ford Escort. Although he was the car’s registered keeper, the Police (rightly) suspected that it was stolen. They seized it under section 19 of the Police and Criminal Evidence Act 1984 (“PACE”). In this they acted lawfully. They questioned Costello but never actually prosecuted him—despite the original vehicle identification and engine numbers’ having been ground off; Costello’s having acquired the car through a “friend” with multiple convictions for handling stolen cars; and his keeping a “car ringing kit” for forging registration numbers under the back seat.

The House of Lords in Royal Bank of Scotland plc v. Etridge (No. 2) [2001] UKHL 44, [2001] 3 W.L.R. 1021 refined and reformulated the principles laid down in Barclays Bank plc v. O’Brien [1994] 1 A.C. 180. Among other things, Etridge sets out new minimum requirements for mortgagees who take third party security from wives or partners and for solicitors whose task it is in such cases to advise the surety.

Occasionally, the report of a case provides a disturbing depiction of a particular aspect of contemporary life, a narrative which is all the more powerful because of the scrupulously neutral language which is used to describe the relevant details. Uratemp Ventures Ltd. v. Collins [2001] UKHL 43, 3 W.L.R. 806 is one such case. It deals with legal issues surrounding the bleak world of residential private hotels and such other spartan accommodation as is available in city centres for the single and rootless. In Uratemp, the House of Lords adopted a purposive construction of the Housing Act 1988 in a well-intentioned attempt to protect those on the precarious bottom rungs of the housing ladder. The result of the case will no doubt be beneficial in the short-term to those individuals clinging on to their meagre accommodation, but the long-term effects of the judgment are, as ever, more uncertain.

In its Keck judgment—famous or notorious according to taste—the Court of Justice drew a distinction, for the purposes of the application of the prohibition in Article 28 EC against measures having equivalent effect to quantitative restrictions (“MEEQRs”), between two categories of national measures. On the one hand were “product requirements”: measures specifying requirements to be met, in order to obtain access to the market of a Member State, by products coming from other Member States where they are lawfully manufactured and marketed, like the minimum alcohol requirement for fruit liqueurs in Cassis de Dijon (Case 120/78 [1997] E.C.R. 649). Such product requirements are liable to constitute MEEQRs, and therefore require specific justification, in order to escape prohibition, on one of the public interest grounds recognised by Community law. On the other hand was the category of measures described in the judgment as “provisions restricting or prohibiting certain selling arrangements”. An example was the legislation at issue in the main proceedings in Keck, which prohibited the resale of products below their purchase price, thereby depriving retailers of a form of sales promotion. Other examples, attested by the case law post-Keck, are measures regulating advertising methods, the kind of shop in which goods of a certain description can be sold, shops’ opening hours and Sunday trading. National provisions in this latter category are not normally such as to hinder trade between Member States under the test formulated by the Court in Dassonville (Case 8/74 [1974] E.C.R. 837, at para. 5), and so do not call for justification; not, that is, “so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and those from other Member States”: see Joined Cases C-267 and 268/9 [1993] E.C.R. I-6097, at paras. 15–17.

In Case C-453/99 Courage Ltd. v. Crehan (judgment of 20 September 2001, not yet reported), the European Court of Justice has been confronted once more with the difficult task of reconciling the effectiveness of Community rights with national rules on remedies. By virtue of a series of agreements between Inntrepreneur Estates Ltd. (IEL), a company which owned public house estates, and Courage Ltd., a brewery with a 19% share of the United Kingdom market in sales of beer, all IEL tenants were required to purchase the whole of their beer requirements exclusively from Courage Ltd. In 1993, Courage Ltd. brought an action for the recovery from Mr. Crehan, a tenant of IEL, of a sum of more than £15,000 for unpaid deliveries of beer. Mr. Crehan contended that the exclusive purchasing obligation was anti-competitive because Courage Ltd. sold its beers to independent tenants of public houses at substantially lower prices than those imposed on IEL tenants. He claimed that the beer tie was therefore contrary to Article 81(1) EC and sought damages for loss caused to him by the imposition of the beer tie. Carnwath J. dismissed the counter-claim and found in favour of Courage Ltd. (Courage Ltd. v. Crehan [1998] E.G.C.S. 171). Mr. Crehan appealed.

When is a monopoly not a monopoly? Following the decision of the European Court of Justice in Case C-383/99 P Procter & Gamble v. Office for Harmonisation of the Internal Market (OHIM) [2002] E.T.M.R. 3, the answer appears to be when it is a registered trade mark.

Are sex or gender crucial components of modern marriage? In Bellinger v. Bellinger [2001] EWCA Civ 1140, [2001] 2 F.L.R. 1048, the Court of Appeal returned to the question of the relevance of biological sex to the validity of marriage, first considered thirty years ago by Ormrod J. in Corbett v. Corbett (otherwise Ashley) [1971] P. 83. Both cases involved male-to-female transsexuals who had undergone gender reassignment surgery but in Bellinger, Mrs. Bellinger sought a declaration under section 55 of the Family Law Act 1986 that her marriage to Mr. Bellinger was valid at its inception and still subsisting (unlike Corbett, which involved a nullity petition). The Court, by a majority, upheld the decision of Johnson J. refusing the declaration.

The decisions of the House of Lords in R. v. Allen [2001] UKHL 45, [2001] 3 W.L.R. 843 and R. v. Dimsey [2001] UKHL 46, [2001] 3 W.L.R. 843 concerned appeals against convictions for cheating and conspiring to cheat the public revenue. The appeals were heard together before the Court of Appeal (noted (2000) 59 C.L.J. 42) and before the House of Lords, although separate decisions were handed down in the latter court. Both cases arose from the evasion of tax through the use of overseas companies. Allen had evaded his own tax liability by, inter alia, making false declarations of his income and Dimsey, a financial services adviser, had administered overseas companies for various clients, including Allen, to evade their tax liability. The grounds of appeal fell under two main headings. A third ground, relating to Allen alone, was that benefits in kind received by him from overseas companies of which he was a shadow director were not taxable. It was held that he was liable to pay tax on such benefits, even though the link between those benefits and the services he provided as a shadow director might be tenuous.

Which law governs a contract where none has been chosen by the parties? The solution lies in Articles 3 and 4 of the 1980 Rome Convention on the Law Applicable to Contractual Obligations. Article 3 allows a court to infer the parties’ intentions from the circumstances. But such intentions must be “real”, not presumed, and in the absence of genuine consent, Article 4 provides that the applicable law is that most closely connected with the contract. Under Article 4(2) this is (in effect) the law in force where the supplier of goods or services is located, or (if relevant) has a branch—for the supplier’s performance is invariably “characteristic” of a contract, in the sense intended by the Convention. But any clarity thereby won is immediately lost because the presumption is rebuttable under Article 4(5) whenever a contract is better connected with another law, exposing Article 4(2) to the risk of constant challenge. The presumption is especially vulnerable because it will so seldom be appropriate to apply the supplier’s law, the law of the place of performance frequently having a stronger claim to govern. Perplexingly, it is a presumption more apt to be rebutted than applied.

Section 3(1) Human Rights Act 1998 appears to limit the powers of the court; statutes can only be interpreted in a manner compatible with Convention rights ‘so far as possible’. However, in practice, Parliament has given the judiciary carte blanche to determine when it is impossible to interpret statutes in a manner compatible with Convention rights. The express words of section 3(1) are so vague as to provide no clear outline of the limits of possibility. Nor does the legislative history of the Act provide any clear boundary. Should the judiciary so wish, section 3(1) could have the same effect in practice as if it impliedly repealed the provisions of all statutes contrary to Convention rights. It is the judiciary and not Parliament that determine how far human rights will be protected.

This article examines the draft Declaration on Population Transfer and Implantation of Settlers developed within the framework of the UN Sub-Committee on the Prevention of Discrimination and the Protection of Minorities. The draft declaration provides for the criminalisation of involuntary population transfer. This article argues that the Declaration will be ineffective in practice and will introduce inconsistency and confusion into the law. However, the attempt to introduce a crime of unlawful population transfer reflects a lacuna in existing law. And yet, this gap is unlikely to be filled by extending existing international crimes to cover ethnic cleansing. This is because existing crimes do not address the international community’s sense of what it is that makes ethnic cleansing so heinous. Thus some action needs to be taken. However, this article argues that the ability of the international community to proceed appropriately is stymied by the fact that international criminal lawyers lack the basic tools and the concepts by which to categorise different types of harm.