The Criminal Justice and Courts Act 2015 has created several new offences regarding juror misconduct. While this legislation has been passed in response to jurors accessing improper ‘evidence’ online, it is wrong to treat juror misconduct as a new problem. The most famous case on this topic (Bushell's Case) did not completely prohibit juror punishment, but the rhetorical force of the decision was such that penal practices have until recently been overlooked in the academic literature. This paper argues that assessing the new offences is greatly helped by understanding how juror misconduct has been responded to in the past. Drawing on the language of Bushell's Case itself, as well as new archival research, it argues that previous practices of juror punishment have largely depended on whether particular instances of misconduct related to the juror's ‘ministerial’ or ‘judicial’ functions; and that ‘judicial’ offences (those relating to verdict formation) have been much less likely to be punished. Rather, such offences have tended to be managed away. If today's judges continue acting in this way, the new offences are unlikely to be resorted to very often, with the judiciary being much more likely to focus on techniques for avoiding misconduct in the first place.

In the past two decades, it has become commonplace for legislative–judicial engagement on contested constitutional questions to be described as a dialogue. This paper argues that the time has come to abandon the notion of dialogue. The first part of the paper describes the difficulties with dialogue theories. Despite the existence of many different versions, these theories share certain constitutionally problematic characteristics. Dialogue theories promote a view of government that is unrealistic, susceptible to normative bias and that overlooks the critical importance of disagreement and institutional differences to a system of democratic government based on the rule of law. The second part of the paper argues that Christopher Ansell's idea of collaboration-as-fruitful-conflict provides a more descriptively and normatively appropriate account of the relationship between the legal and political branches of government.

The new UK regulatory structure for financial services is now firmly in place. This brings with it changes to the consumer credit regime, both in terms of regulation and supervision. The unfair credit relationship test is a sanction contained in the Consumer Credit Act 1974, and its future may well be subject to review as further reform to the UK regulation is actioned. This paper provides a fresh examination of the test's developing role in relation to protecting borrowers against unfairness and its application by the courts. The question is then posed as to whether evidence of underlying ‘competing’ ethics in both case-law and statutory policy suggests that the test will no longer be appropriate in the control of unfairness in relation to the credit consumer, when changes to the legislation and regulatory framework are concluded.

There is no doubt that being ‘critical’ about victim-blame requires ensuring first that it is the perpetrator and not the victim who is held responsible for sexual offending. At the same time, engagement with this topic requires critical acuity as to how victim-blame is identified, and to the boundary between raising legitimate questions about the presence or absence of consent in less than ideal circumstances, and falling back on to myths and stereotypes that are unfair to complainants and damaging to victims. This paper identifies and critiques three purported intersections of rape myths and victim-blame that have gained widespread acknowledgement within feminist legal studies: first, that a woman is blamed for voluntarily putting herself into circumstances in which ‘rape happens’; secondly, that a woman is blamed for ‘miscommunicating’ her refusal; and, thirdly, that consent is wrongly understood to have been given in circumstances where a woman in fact lacked the freedom to do so. This critique of methodological and analytical approaches to identifying victim-blame as a symptom of rape myth acceptance focuses on research published recently by the Office of the Children's Commissioner, ‘“Sex Without Consent, I Suppose That Is Rape”: How Young People in England Understand Sexual Consent’.

A host of activities jeopardise the safety of an excised organ: an organ transported across local, regional, state or national boundaries could be damaged or lost in transit. A thief might snatch the organ from the possession of the transplant team; a transplant surgeon could use the organ for the treatment of their relative or patient, a celebrity or an influential political figure, instead of transplanting the organ into the properly selected and designated recipient. Also, the organ could be damaged maliciously by a third party. Furthermore, a live donor might change their mind after the organ had been retrieved, or the intended recipient might die before a scheduled transplant, after the organ had been retrieved from a live donor. In the above cases, the organ is in a state of limbo, prompting an enquiry into the appropriate remedial responses of the law for a claimant. Non-proprietary remedies might be helpful in the above scenarios, but fail to provide the necessary continuing control. Accordingly, the first section of this paper considers whether positive law recognises the existence of proprietary interests in excised organs; absent such protection, this paper suggests that the law should recognise proprietary interests in excised organs.

The dreadful disease of mesothelioma, caused by exposure to asbestos, has a number of features that pose almost intractable problems for tort law and liability insurance, notably the time lag of some 35 years between exposure and injury, and the accepted current impossibility of science proving exactly which exposure has given rise to the disease. The Supreme Court has addressed tort and insurance issues on no fewer than six occasions, most recently in Zurich Insurance PLC UK Branch v International Energy Group Ltd (IEG), a case in which a specially convened seven-judge panel split 4:3 on the correct analysis of the insurance position. This paper analyses the reasoning and its implications. As will be seen, IEG is unlikely to be the end of the story. Most of the cases have involved exposure of employees to asbestos, and discussion is directed primarily to that context. A brief outline of the authorities will suffice to set the background to IEG.

This paper argues that shadow directors, as defined in English law, ought to owe the full range of directors' duties, both fiduciary and non-fiduciary, enacted in the Companies Act 2006 (CA 2006), ss 171–177, to the relevant company under their influence. Following the enactment of the recent Small Business, Enterprise and Employment Act (SBEEA) 2015, these general duties are likely to apply to shadow directors, although there is still a case to be made as to why shadow directors should owe fiduciary duties to the relevant company. It is argued here that such a relationship is fiduciary in nature, but the current approach deployed in the English courts, based upon the application of Finn's originally formulated ‘undertaking’ test alone, is inadequate. Given these inadequacies, it is proposed that the Canadian ‘power and discretion’ test be deployed alongside the ‘undertaking’ test, in order to provide a far more comprehensive justification for the application of fiduciary obligations to shadow directors. This position is supported by establishing a theoretical basis for the ‘power and discretion’ test, via Paul Miller's ‘fiduciary powers theory’, as well as considering the application of such a test to shadow directors.

Recent high-profile convictions have called attention to the common law offence of preventing a lawful and decent burial. This offence, which can only be found in its modern incarnation since 1974, is being used with increasing frequency. We argue that there is, however, little justification (or need) for criminalising the prevention of burial per se. The historical context of the need to regulate the disposal of corpses is no longer relevant. Moreover, the ambit of the offence is such that it cannot be argued to be targeting acts of intentional disrespect to deceased bodies. We suggest that acts which intentionally impede the administration of justice are rightly criminal, but other offences already deal more appropriately with these. We conclude that the contemporary use of the offence of preventing a lawful and decent burial contributes to an unnecessary proliferation of overlapping offences, providing prosecutors and juries with a way to assign liability to a person whom they suspect, but cannot prove, is guilty of more serious charges.