Hart Publishing Ltd

"INTERNET LAW BOOK REVIEWS" PROVIDED BY - Rob Jerrard LLB LLM (London)

Books by Hart Publishing Ltd

The Publisher's aim is a simple one: to publish good academic books and journals about law which will enhance the study and practice of law in all its aspects.

Hart Publishing Ltd Books Reviewed in 2009


Labour Law
Edition: Fifth Edition
Format: Paperback
Author: Simon Deakin and Gillian S Morris
ISBN: 9781841138022
Publishers: Hart Publishing
Price: £35
Publication Date: August
 
Publisher's Title Information
 

Labour law is a highly dynamic and complex field which can be properly understood only in its broader international and historical context. Deakin and Morris: Labour Law, a work increasingly cited as authoritative in the higher appellate courts, provides a comprehensive analysis of current British labour law which explains the role of different legal sources, as well as social and economic policy, in its development. It thus enables readers to obtain a deeper insight into likely future, as well as past, changes in the law. The new edition, while following the broad pattern of previous editions, highlights important new developments in the areas of the contract of employment, discipline and dismissal, discrimination law, EU law, employee representation, human rights, 'work-life balance' policies, trade union law and industrial action law.
 
The book examines in detail the law governing individual employment relations, with chapters covering the definition of the employment relationship; the sources and regulation of terms and conditions of employment; discipline and termination of employment; and equality of treatment. This is followed by an analysis of the elements of collective labour law - the forms of collective organisation, freedom of association, employee representation, internal trade union government, and the law relating to industrial action.
 
The fifth edition of Deakin and Morris: Labour Law is an essential text for students of law and of disciplines related to management and industrial relations, for barristers and solicitors working in the field of labour law, and for all those with a serious interest in the subject
The Author
 
Simon Deakin is Professor of Law and Fellow of Peterhouse, University of Cambridge.
Gillian S Morris is a barrister at Matrix Chambers; a Deputy Chairman of the Central Arbitration Committee; Honorary Professor, Warwick Business School, University of Warwick; and a former Professor of Law at Brunel University.
 

Preface
 
In writing this book we have been influenced by a tradition of labour law scholarship which, as we explain in Chapter 1, views this branch of the law as indissolubly linked to the goals of social policy. How labour law operates as a mechanism for the expression of those
goals involves a consideration of many wider social, economic and philosophical issues an a book such as this can hope adequately to address. Nevertheless, an essential first step in attaining a wider understanding of labour law is to explain its internal conceptual structure. Accordingly, our foremost aim has been to produce a text which, without being encyclopaedic, is broadly comprehensive in nature and so can serve as a resource in the teaching of labour law in universities. We have been pleased to find that what we have had to say in previous editions has also been of interest to practitioners of labour law in the legal and other interested professions, and we hope to continue to address this group in future.
 
We have sought to explain the contemporary law in a way which brings out the dynamic and continuously evolving nature of doctrine in this area, and, in particular, to show how it is shaped by the interaction between the principal sources of labour law (the common law, collective bargaining, social legislation and transnational labour standards). To that end we have attempted to locate the law in its historical context; to make selective use, where appropriate, of comparative and international material; to consider areas of labour market regulation which are closely related to labour law (such as active labour market policy and aspects of tax and social security law); and to discuss, where relevant, theories and accounts of the law's economic and social impact. At various points we have, perhaps, been able to do no more than indicate further lines of inquiry for those who may be interested in considering these dimensions of the subject; but if we are able to whet the appetite of readers in this way, we shall be content.
 
Our aim throughout has been to integrate our account of legal doctrine with analysis of law and policy. We have attempted to make the text more digestible by the use of numbered paragraphs and sub-headings. We also conclude our analyses of areas of the law with assessment sections, either within or at the end of chapters, whose purpose is to provide a critical evaluation of those areas.
 
We are grateful for all the support and encouragement we have received from our publishers.
In April 2000 one of us, Gillian Morris, was appointed a deputy chairman of the CAC. This work is written entirely in a personal capacity and its contents should not be taken to represent the views of the CAC unless indicated otherwise in the text.
 
For the sake of clarity we have used the nomenclature of the Civil Procedure Rules throughout, regardless of whether the case with which we are concerned was subject to these rules. Thus, 'plaintiffs' become 'claimants', 'interlocutory' injunctions are 'interim'. We also refer to 'employment' tribunals throughout.
 
The law of England and Wales is stated as at 6 April 2009, although it has been possible to include some amendments since that date.
 
In June 2009 the Department for Business Enterprise and Regulatory Reform (formerly the Department of Trade and Industry) became the Department for Business Innovation and Skills. This change came too late for us to amend references to BERR in this work.
 
In June 2009 the government confirmed that it intended to increase the maximum amount of a week's pay which applies in specified statutory contexts, including redundancy and unfair dismissal, from 1 October 2009. It also proposes to suspend the annual uprating exercise in February 2010 so the weekly limit will remain unchanged until February 2011.
 
SFD
GSM
21 June 2009.


The New British Constitution
Edition: 1st
Format: Paperback
Author: Vernon Bogdanor
ISBN: 9781841136714
Publishers: Hart
Price: £17.95
Publication Date: June 2009
 
Publisher's Title Information
 

The last decade has seen radical changes in the way we are governed. Reforms such as the Human Rights Act and devolution have led to the replacement of one constitutional order by another. This book is the first to describe and
analyse Britain's new constitution, asking why it was that the old system, seemingly hallowed by time, came under challenge, and why it is being replaced.
 
The Human Rights Act and the devolution legislation have the character of fundamental law. They in practice limit the rights of Westminster as a sovereign parliament, and establish a constitution which is quasi-federal in
nature. The old constitution emphasised the sovereignty of Parliament. The new constitution, by contrast, emphasises the separation of powers, both territorially and at the centre of government.
 
The aim of constitutional reformers has been to improve the quality of government. But the main weakness of the new constitution is that it does little to secure more popular involvement in politics. We are in the process of becoming a constitutional state, but not a popular constitutional state. The next phase of constitutional reform, therefore, is likely to involve the creation of new forms of democratic engagement, so that our constitutional forms come to be more congruent with the social and political forces of the age. The end-point of this piecemeal process might well be a fully codified or written constitution which declares that power stems not from the Queen-in Parliament, but, instead, as in so many constitutions, from `We, the People'.
 
The old British constitution was analysed by Bagehot and Dicey. In this book Vernon Bogdanor charts the significance of what is coming to replace it.
 
The expenses scandal shows up grave defects in the British constitution. Vernon Bogdanor shows how the constitution can be reformed and the political system opened up in `The New British Constitution'.


The Author

Vernon Bogdanor, CBE, Fellow of Brasenose College, is Professor of Government at Oxford University, Gresham Professor of Law, a Fellow of the British Academy and an Honorary Fellow of the Institute of Advanced Legal Studies. He has been an adviser to a number of governments, including those of the Czech Republic, Hungary, Kosovo, Israel and Slovakia. His books include The People and the Party System, Multi-Party Politics and the Constitution, Power and the People, and Devolution in the United Kingdom. He is a frequent contributor to TV, radio and the press and is a sometime special advisor to the House of Lords Select Committee on the European Communities (1982-83), and the House of Commons Public Service Committee. Most recently he was awarded the Sir Isiaiah Berlin prize for Lifetime Contribution to Political Studies by the Political Studies Association.

Contents
 
Acknowledgments ix
Introduction xi
Part I: The Old Constitution
1 A Peculiar Constitution 3
2 The Old Constitution Under Strain 23
Part II: The New Constitution
3 The Human Rights Act: Cornerstone of the New Constitution 53
4 Devolution 89
5 Hung Parliaments: Governing Without a Majority 121
6 A Reformed House of Lords? 145
7 The Referendum 173
8 The New Government of London 197
9 Towards a Written Constitution? 215
Part III: Beyond The New Constitution
10 A New Localism? 235
11 The Constitutional State 271
12 Towards a Popular Constitutional State: Democracy and Participation 291
Index 311
 

Reviews-to-date
 
This is a beautifully written book, the language as clear as the thinking, and it could not be more timely. The Economist 25th June 2009
 
This book is written with a vigorous clarity, with easy expertise and with quiet wit. Bogdanor is himself a part of the constitution, an unacknowledged legislator: the book is a revelation. More, it is a reproach to journalism, that we have not more clearly explained a great shift of the past decade. He has. John Lloyd The Financial Times 28th June 2009
 
...provides a fresh and reflective account of democratic change...despite the efforts of both Tony Blair and Gordon Brown public opinion polls and attitudinal surveys reveal declining levels of public trust in politicians and confidence in the political system. It is exactly in explaining, understanding and responding to this puzzle - major constitutional reform combined with the erosion of public support - that The New British Constitution provides a provocative and original answer. Matthew Flinders


Digital Copyright
Law and Practice
Edition: 3rd
Format: Paperback
Author: Simon Stokes
ISBN: 9781841139326
Publishers: Hart Publishing
Price: £35.00
Publication Date: May
 
Publisher's Title Information


The first edition of this book was the first UK text to examine digital copyright together with related areas such as performers' rights, moral rights, database rights and competition law as a subject in its own right, and the second edition dealt with the UK implementation of the 2001 Copyright Directive. Now in its third edition, the book has been updated to address developments in copyright law, database law and moral rights and expanded to cover copyright law and user-generated content, and the development of Web 2.0 and beyond. Important recent UK, EU and US cases are discussed. As the UK Government and the European Commission explore possible changes to copyright law and as both the public and private sectors rely more and more on digital content and services, copyright law continues to be a hotly debated topic. This book helps to put the ongoing copyright debate into perspective and provides practical guidance for those creating or exploiting digital content or technology, whether in academia, the software, information and creative industries, and other areas of the economy. The focus is on the specifics of the law in this area together with the practical aspects, including precedents and precedent checklists dealing with common digital copyright transactions. Both academics and practitioners will find the book an invaluable guide to this rapidly developing field of law.


 
TABLE OF CONTENTS
 
Preface to the third edition v
Acknowledgements (third edition) vii
Acknowledgements (second edition) viii
Acknowledgements (first edition) ix
glossary xvii
Table of cases xxv
Table of legislation xxxi
1 Why digital copyright matters 1
1.1 Overview of this Book 1
1.1.1 This Chapter and the Book 2
1.2 Copyright: Its Scope and Rationale 2
1.2.1 Why Have Copyright? 2
1.2.2 The Case against Copyright and Proposals for Reform 2
1.2.3 Limits on Copyright: The Idea/Expression Dichotomy and
Fair Use/Fair Dealing 4
1.2.4 Justifying Copyright 5
1.2.5 Originality and Copyright 6
1.2.6 Moral Rights 7
1.2.7 Copyright and other Intellectual Property (IP) Rights 7
1.3 The International Aspect of Copyright 8
1.3.1 Background 8
1.3.2 An Example 9
1.3.3 The Internet and International Copyright 10
1.4 The Digital Challenge to Copyright 10
1.5 Internet Technology and Copyright 11
1.5.1 How the Internet Works 11
1.6 International Legislation 15
1.6.1 E-Commerce Directive 16
1.6.2 Digital Copyright Directive 16
1.7 The Future 17
1.7.1 The Death of Copyright 17
1.7.2 A New Future for Copyright 18
1.7.3 Concluding Thoughts 19
2 DIGITAL COPYRIGHT: THE BASICS 20
2.1 Introduction 20
2.1.1 Overview 20
2.1.2 Sources of Law 20
2.2 What Digital Copyright Protects 21
2.2.1 UK Law 21
2.2.2 Digital Copyright Works 21
2.2.3 Criteria for Protection, ie Work must be 'Original' 25
2.2.4 Who is the Author (Including for Computer-generated
Works)? 27
2.2.5 The Need for Fixation/Permanence of theWork? 28
2.2.6 Qualifying Factors for Protection and Digital Copyright
Formalities 28
2.2.7 Duration of Protection 29
2.2.8 Other Digital Rights Neighbouring Copyright or Related to it 30
2.3 How Digital Copyright can be Infringed 37
2.3.1 Digital Aspects 38
2.3.2 Remedies for Copyright Infringement 39
2.4 Exceptions and Defences to Digital Copyright Infringement 40
2.4.1 Statutory Exceptions 40
2.4.2 Licences 46
2.4.3 Public Policy Defences 47
2.5 Who Owns the Digital Copyright? 48
2.5.1 Employees, Directors and Commissioned Works 48
2.5.2 Joint Authorship and Joint Ownership 49
2.5.3 Collecting Societies 50
2.6 The Implementation of the Electronic Commerce and Digital
Copyright Directives into UK Law 50
2.6.1 Implementation of the Electronic Commerce Directive 50
2.6.2 Implementation of the Digital Copyright Directive 54
3 DIGITAL DATABASE LAW AND THE INTERNET 58
3.1 The Relationship between Copyright and Database Right 58
3.1.1 Position before 1 January 1998 58
3.1.2 Position from 1 January 1998 59
3.2 Digital Copyright Protection for Databases 59
3.3 Database Right Protection 61
3.3.1 British Horseracing Board Limited v William Hill (2001) 63
3.3.2 The ECJ Decision 64
3.3.3 Impact of the ECJ Decision in the UK Courts 66
3.3.4 Future Development of the Database Directive 67
3.4 Some Practical Suggestions 68
4 DIGITAL MORAL RIGHTS: THE BASICS 71
4.1 What are Digital Moral Rights? 71
xii Contents
4.1.1 Background 71
4.1.2 UK Law 72
4.2 How are Digital Moral Rights Infringed? 74
4.2.1 Right of Paternity 74
4.2.2 Derogatory Treatment 75
4.2.3 Moral Rights in the US 77
4.2.4 Performers' Moral Rights 77
4.2.5 Implications of Moral Rights for the Digital Environment 79
4.3 Dealing with Moral Rights in Practice 80
5 DIGITAL RIGHTS AND COMPETITON LAW 82
5.1 Overview: Competition Law and Digital Copyright 82
5.2 UK Competition Law 83
5.2.1 The Competition Act 1998 83
5.2.2 Restraint of Trade Doctrine 86
5.3 EU Law 86
5.4 Penalties for Breaching Competition Law 87
5.5 Implications for Digital Copyright Businesses 87
5.5.1 E-commerce Generally 87
5.5.2 Software and Other Digital Copyright Licences 88
5.5.3 Digital Copyright Distribution Agreements 89
5.5.4 Unfair Prices or Predatory Pricing 90
5.5.5 Maintenance 91
5.5.6 End-user Sales 91
5.5.7 Refusal to License Digital Copyright to Competitors 92
5.5.8 Excessive Pricing 96
5.5.9 Content Bundling 96
5.5.10 Exhaustion of Rights in Digital Copyright Products 96
5.5.11 Collecting Societies 98
5.6 Concluding Comments 99
6 SOFTWARE COPYRIGHT 101
6.1 Code and Copyright: The Basics 101
6.2 The Software Directive 103
6.3 What Does Software Copyright Protect? 105
6.3.1 John Richardson Computers Ltd v Flanders 106
6.3.2 Ibcos Computers Ltd v Barclays Mercantile Highland
Finance Ltd 107
6.3.3 Cantor Fitzgerald v Tradition 108
6.3.4 Navitaire Inc v Easyjet Airline Co & Anor 111
6.3.5 Nova Productions v Mazooma Games; Nova Productions
v Bell Fruit Games 115
6.3.6 Software Copyright Following Cantor Fitzgerald, Navitaire
and Nova Productions 116
Contents xiii
6.4 The Challenge of the Open Source Movement to Software
Copyright? 118
6.4.1 Some Issues 119
7 DIGITAL COPYRIGHT AND E-COMMERCE 120
7.1 Content Reuse 121
7.1.1 Specific Issues for Audio-visual Content 122
7.1.2 Some Examples from the Case Law 123
7.1.3 Lessons to be Learnt 124
7.2 Licensing and Linking 125
7.2.1 Licensing Digital Copyright Works 126
7.2.2 Linking 129
7.3 Digital Image Protection 134
7.3.1 Copyright in Digital Images 134
7.3.2 Infringing Image Rights 136
7.3.3 Protecting Digital Images 136
7.4 Lawful Use of Search Engines 137
7.4.1 Background 137
7.4.2 The US Experience 138
7.4.3 Kelly v Arriba Soft (US) 139
7.4.4 Practical Issues 146
7.5 Napster, Grokster, MP3 and Beyond:
a UK View 147
7.5.1 The UK Position 148
7.5.2 US Law 149
7.5.3 Napster, Grokster and Beyond 151
7.5.4 Where Next? 154
7.6 Service Provider Liability 154
7.6.1 Background 154
7.6.2 Clarifying the Position 155
7.7 Standards and Web Content 156
7.8 Streaming Media and Digital Copyright 157
7.8.1 Piracy and Streaming 158
7.8.2 Defences against Piracy 158
7.8.3 Concluding Thoughts 159
7.9 Technical Protection Measures and Fair Use: The End of
Copyright? 159
7.9.1 Background 159
7.9.2 The Position in the US 160
7.9.3 The UK Position prior to 31 October 2003 162
7.9.4 The European Dimension 163
7.9.5 UK Implementation of Effective Technological Measures
and ERMI 166
xiv Contents
7.9.6 Technological Measures and Permitted Acts, Fair Use and
Fair Dealing 169
7.9.7 The Future of Digital Rights Management 170
8 DIGITAL COPYRIGHT, WEB 2.0 AND BEYOND 172
8.1 Web 2.0 and Copyright 172
8.1.1 Web 2.0 Legal IssuesBackground 173
8.1.2 Dealing with the Issues: The Importance of Contractual
and/or Licence Terms 173
8.1.3 Some Specific Issues 175
8.2 Fair Dealing and Web 2.0 176
8.2.1 Google Book Search 176
8.2.2 Google News 178
8.2.3 UK Position 179
8.2.4 Liability for Hosting and/or Distributing User-Generated
Content 180
9 PROTECTING AND MANAGING YOUR DIGITAL
COPYRIGHT ASSETS 183
9.1 General 183
9.1.1 Acquiring Rights: Ownership of Digital Copyright 183
9.1.2 Acquiring Rights: Licensing Digital Copyrights 184
9.1.3 Protecting and Exploiting Digital Copyrights 184
9.2 Issues for Specific Industries 185
9.2.1 General Industrial 185
9.2.2 Financial and Professional Services 186
9.2.3 Telecommunications & ISPs 187
9.2.4 Software and Computer Games 187
9.2.5 Publishing and Information Providers 188
9.2.6 Broadcasting, Entertainment and Music 189
9.2.7 Gaming and Betting 190
9.2.8 Auction Houses and Collectibles Sites 190
9.2.9 Museums, Galleries, and Picture Libraries 191
9.2.10 Pharmaceutical, Biotechnology and Bio-information/
Bio-informatics Industries 192
9.2.11 Universities/Higher Education Sector 193
9.3 The Role of Collecting Societies in the Digital Environment 194
9.3.1 The Future of Collecting Societies in the Digital
Environment 195
9.3.2 The Major Collecting Societies in the UK 198
9.3.3 Digital Copyright Case Study: Mobile Phone Ringtones
and Realtones 202
9.4 Precedent Checklists and Precedents 202
Contents xv
9.4.1 ChecklistAcquiring Software (Digital Copyright User
Focus) 202
9.4.2 ChecklistAcquiring Internet Content (Digital Copyright
User Focus) 204
9.4.3 ChecklistDigital Copyright Distribution and Licensing
(Digital Copyright Licensor Focus) 206
9.4.4 Open Source LicencesChecklist of Licensing Options 209
9.4.5 Creative Commons 211
9.4.6 Linking Agreement 212
9.4.7 Website Terms 215
INDEX


Evidence of Bad Character
Edition: 2nd 2009
Format: Paperback
Author: J R Spencer
ISBN: 9781841139814
Publishers: Hart Publishing
Price: £30
Publication Date: May 2009
 
Publisher's Title Information

This is the second edition of John Spencer's now well-established book which seeks to explain this complex area of law for the benefit of members of judges, criminal practitioners and academics teaching the law of evidence. In the past, the rule excluding evidence of the defendant's general bad character and disposition to commit the offence was sometimes described as one of the most hallowed rules of evidence; Lord Sankey, in Maxwell v DPP, referred to it as '...one of the most deeply rooted and jealously guarded principles of our criminal law.' In reality it was not particularly ancient, and in recent years was increasingly attacked. On technical grounds the body of law surrounding it was criticised as over-complicated and inconsistent, and more radical critics condemned it as unduly favourable to the guilty. In response to this, the law was completely recast in Part II of the Criminal Justice Act 2003. This book, now updated to take into account a raft of new cases, offers a thorough analysis of the bad character provisions of the Criminal Justice Act 2003 in the light of the way in which they have been interpreted by the courts


From the reviews of the first edition:

`It is difficult to see how this complex legislation could be presented or explained more clearly... essential for all criminal practitioners.' Nigel Pascoe QC, Counsel

`... a concise, highly portable and valuable little book.' Benedict Mills, New Law Journal

`... a thorough and remarkably clear analysis of the bad character provisions... You can expect to see this book produced widely in court.' Andrew Keogh, Crimeline Updater

`... the commentary is of a high and scholarly standard...It is small and light enough to be slipped into the case of travelling counsel, and is likely to be considered authoritative enough to be cited in court...should be required reading for counsel and the judiciary.' Jon Mack, Internet Law Book Reviews

`An outstanding account of a difficult topic in the law of evidence.' Professor Andrew Choo, University of Warwick
Preface To The Second Edition
 
When viewed from a distance, not much has happened in this area of the law since
the first edition of this book appeared in 2006. The bad character evidence provisions
of the Criminal Justice Act 2003 remain on the statute book in their original
form. No case relating to them has yet reached the House of Lords. In the main,
the Court of Appeal and the Divisional Court have confined themselves to applying
the principles that were laid down in the initial group of cases, which are collected
in Appendix V to this book; and by and large this area of the law has
developed along the lines foreseen in the first edition, which has been cited by the
Court of Appeal on number of occasions.
 
When looked at closely, however, this area has seen a great deal of activity. The bad
character provisions of the Criminal Justice Act 2003 have been before the Court of
Appeal and the Divisional Court at least 200 times. Among the more important
issues to have been considered are the extent to which the previous convictions of a
witness or of a defendant may be adduced to dent his credibility, how far the new
provisions of the 2003 apply in 'cross-admissibility' cases, whether foreign convictions
are admissible to prove English crimes, and the extent (if any) to which the
court can prevent one co-defendant revealing the bad character of another. In
Campbell [2007] EWCA Crim 1472, furthermore, the Court of Appeal criticised the
original Judicial Studies Board Specimen Direction on evidence of the defendant's
bad character as over-complicated, in consequence of which it was withdrawn, and
in October 2008 re-issued in a simpler form. At the time of writing, furthermore, the
Coroners and Justice Bill is before Parliament which, if enacted, will alter the legal
status of convictions imposed by the courts of other EU Member States. Meanwhile
the criminal Bar, with ingenuity equal to its optimism, has been inventing one gloss
after another in the hope of limiting the scope of the new legislation, none of which
the Court of Appeal has so far been willing to accept. And the higher courts have
delivered many judgments which, if they make no new law, provide interesting illustrations
of how the new rules about evidence of bad character operate.
 
All this means that, if this little book is to continue to serve its intended purpose
as a tool for judges and practitioners, a new edition is required. As with the first
edition, I am grateful to a range of friends and colleagues for their ideas and their
suggestions; my thanks are due to Amy Perkins, for acting as an efficient and conscientious
'devil'; and I am grateful to my family for putting up with my unsociable
behaviour over Christmas and New Year while I was preparing it.
 
JR Spencer Cambridge, February 2009

 
Review

Once again, the author refers to this excellent erudite publication as 'this little book'. I may be mistaken but it does feel and look slightly heavier, however it remains at the forefront of tackling this extremely important subject.
 
The author hints that not much has happened in this field since 2006 but goes on to reveal that the bad character provisions of the Criminal Justice Act 2003 have been before the Court of Appeal at least two hundred times. The author therefore deals with the important issues.
 
All of the important cases are covered in the new edition.
 
Blake (2006) 170 JPN 144
Bovell [2005] EWCA Crim 1091
Brima [2006] EWCA Crim 408
Campbell [2007] EWCA Crim 1472
Davis [2008] EWCA Crim 1156
Edwards [2005] EWCA Crim 1813
Hanson [2005] EWCA Crim 824
Highton [2005] EWCA Crim 1985
Musone [2007] EWCA Crim 1237
Benda [2005] EWCA Crim 2826
Smith (2006) 170 JPN 142
Somonathan [2005] EWCA Crim 2866
Tolley & Wood 171 JP 25
Wallace [2007] EWCA Crim 1760
Weir [2005] EWCA Crim 2866
 
The Author tells us that 'among the more important issues to have been considered are the extent to which the previous convictions of a witness or of a defendant may be adduced to dent his credibility, how far the new provisions of the 2003 apply in 'cross-admissibility' cases, whether foreign convictions are admissible to prove English crimes, and the extent (if any) to which the court can prevent one co-defendant revealing the bad character of another. In Campbell [2007] EWCA Crim 1472, furthermore, the Court of Appeal criticised the original Judicial Studies Board Specimen Direction on evidence of the defendant's bad character as over-complicated, in consequence of which it was withdrawn, and in October 2008 re-issued in a simpler form.'
 
The provisions of part 11 of the CJA 2003 (ss. 98 to 110 and 112) came into force on 15 December 2004 (Criminal Justice Act 2003 (Commencement No. 6 and Transitional Provisions) Order 2004). They now apply in all trials beginning on or after that date (Bradley [2005] 1 Cr App R 397), including retrials where the original trial took place before the changes effected by the Act (Campbell [2006] EWCA Crim 1305).
 
The new provisions, with minor exceptions, codify the law governing the admissibility of evidence of bad character, replacing both the common law and the provisions of the Criminal Evidence Act 1898, s. 1(3), which formerly governed the cross-examination of the accused on matters relating to his bad character.
 
In Bradley, the Court of Appeal observed that the provisions form part of a 'torrent' of legislation conspicuous more for its quantity than its quality. Judgments of the Court of Appeal has resolved many of the ambiguities in the drafting.
 
Some key decisions are
Hanson [2005] 1 WLR 3169;
Highton [2005] 1 WLR 3472;
Edwards [2006]1 WLR 1524;
Weir [2006] 1 WLR 1855;
Renda [2006] 1 WLR 2948;
Lawson [2007] 1 WLR 1191.
 
Campbell [2007] EWCA Crim 1472 may be a departure from this line of thinking.
 
The statutory scheme differs from the old law of bad character in many respects. It may still be helpful to make reference to the 'old' law of character, but subject to the warning' that the new law embodies a different approach to admissibility, which gives effect to Parliament's intention that 'evidence of bad character would be put before juries more frequently than had hitherto been the case' (Edwards [2006] 1 WLR 1524).
 
Appendix 1 contains the germane part of the Criminal Justice Act 2003, Appendix V contains these leading cases
 
R v Hanson, Gilmore and P [2005] EWCA Crim 824, [2005] I WLR 3169, [2005] 2 CrAppR 21 (299)
R v Bovell and Dowds [2005] EWCA Crim 1091, [2005] 2 CrAppR 27 (401)
R v Edwards, Fysh, Duggan and Chohan [2005] EWCA Crim 1813, [2006] 1 CrAppR 3 (31)
R v Highton, Van Nguyen and Carp [2005] EWCA Crim 1985, [2005]
I WLR 3472, [2006] 1 CrAppR 7 (125)
R v Rencia, Ball, Akram, Osbourne, Razaq and Razaq [2005] EWCA Crim 2826, [2006] 1 WLR 2948, [2006] 1 CrAppR 24 (380)
Re Weir, Somanathan, Yaxley-Lennon, Manister, Hong and De [2005]
EWCA Crim 2866, [2006] 1 WLR 1885, [2006] 1 CrAppR 19 (303)
R Edwards and Rowlands, McLean, Smith, Enright and Gray [2005] EWCA Grim 3244, [2006] 1 WLR 1524, [2006] 2 CrAppR 4 (62)
R v Campbell [2007] EWCA Crim 1472, [2007] 1 WLR 2798, [2007] 2 CrAppR 28 (261)
 
As we previously said at “Internet Law Book Reviews” this book is of a high and scholarly standard and the new edition is very welcome.
 
Rob Jerrard, July 2009

Review of 1st Edition
 
In 2003, Parliament legislated to allow evidence of bad character to be adduced in criminal proceedings. The Criminal Justice Act 2003 controversially overturned what Lord Sankey had in the Maxwell judgment noted as “one of the most deeply rooted … principles of our criminal law." Whereas the courts could take account of a defendant's (previous) good character when determining the appropriate sentence, any suggestion of his previous 'bad' character was strictly out of bounds. The change has in large part been motivated by a widespread desire to raise conviction rates, and has been enthusiastically embraced by the CPS.

In what he refers to as his "little book", Professor Spencer updates and expands his Spring 2005 training course for the judiciary on Sections 98 - 113 of the Criminal Justice Act 2003. Although comparatively short, this book might more properly be considered a “text and materials" on the new law, since it appends not only the pertinent legislative provisions and Statutory Instruments, but also the text of the seven leading judgments. Professor Spencer rows somewhat against the academic tide, by welcoming the new legislative regime, and charts his course early on:
“In my view, admitting evidence of the defendant's previous conduct is neither dangerous nor unjust, provided there is other solid evidence which links him to the offence" (at vii).
The author cites the case of Oscar Slater in support of his viewpoint. In fairness to Professor Spencer, he does qualify his controversial statement by adding,
“The danger arises where such evidence is allowed to be used as a substitute for more convincing evidence where the case against him is weak."

The extent to which this qualification undermines Spencer's original premise is a moot point. However, this perhaps is at the heart of the problem with 'bad character' evidence. The police officer investigating the alleged rape does, of course, have access to evidence of the suspect's previous character. A quick check on the PNC or Crime Intelligence (or force equivalent) details not only his previous reprimands, warnings, and criminal convictions, but also unproven allegations against him, and what the police optimistically refer to as “intelligence". Ultimately, this could be as vague as a 'possible' sighting in an area near where an offence took place. Used properly, this information necessarily informs not only the direction of the criminal investigation, but must also inevitably influence CPS Charging Advice. As Spencer alludes, the fact that a suspect may have a predilection for bizarre sexual practices, does not necessary mean that he is necessarily guilty as charged. But Spencer does argue that this intelligence should be admissible.

Throughout the text, reference is made, as is usual these days, to the Human Rights Act 1998. Spencer considers the compatibility of the HRA with the 'bad character' rules, and devotes some pages to a consideration of the practical implications. For instance, there is the question of whether making an allegation about a person's sexuality is a breach of their Article 8 right to privacy. Usefully for the courts, Spencer also discusses the shortcoming to the legislation. For instance, inexplicably there is no comprehensive definition in the English legal tradition of the term 'reprehensible behaviour' as a part of the definition of 'bad character', or the gateway (g) hurdle of an attack on 'any person'.

The book is a relatively short text - the commentary is of a high and scholarly standard, similar in layout to the popular “Blackstone's Guides". The cover is a dull and uninspiring grey and black. But this book was never intended to catch the attention of the 'browsing' reader. The examination of the subject is thorough and methodical, and does not assume that the reader has any prior specialised knowledge of the law of evidence. The 'commentary' part accounts for the first 117 pages, and the remaining pages are a varied array of useful and thoughtfully selected appendices. The size of the book however, might be considered a strength. It is small and light enough to be slipped into the case of travelling counsel, and is likely to be considered authoritative enough to be cited in court - which is in itself surely praise enough for any author!

Professor Spencer has produced a very readable and moderately accessible handbook to the new law. It should be required reading for counsel and the judiciary,and no doubt future editions will take into account judicial decisions, and vice versa.

Jon Mack September 2006


The Separation of Powers and Legislative Interference in Judicial Process
Constitutional Principles and Limitations
Edition: 1st
Format: Hardback
Author: Peter Gerangelos
ISBN: 9781841136615
Publishers: Hart
Price: £50
Publication Date: April
Publisher's Title Information
This book examines the constitutional principles governing the relationship between legislatures and courts at that critical crossroads of their power where legislatures may seek to intervene in the judicial process, or to interfere with judicial functions, to secure outcomes consistent with their policy objectives or interests. Cases of high political moment are usually involved, where the temptation, indeed political imperative, for legislatures to intervene can be overwhelming. Although the methods of intervention are various, ranging from the direct and egregious to the subtle and imperceptible, unbridled legislative power in this regard has been a continuing concern in all common law jurisdictions. Prominent examples include direct legislative interference in pending cases, usurpation of judicial power by legislatures, limitations on the jurisdiction of courts, strategic amendments to law applicable to cases pending appeal, and attempts directly to overturn court decisions in particular cases.
 
Because the doctrine of the separation of powers, as an entrenched constitutional rule, is a major source of principle, the book will examine in detail the jurisprudence of the United States and Australia in particular. These jurisdictions have identical constitutional provisions entrenching that doctrine as well as the most developed jurisprudence on this point. The legal position in the United Kingdom, which does not have an entrenched separation of powers doctrine, will be examined as a counterpoint. Other relevant jurisdictions (such as Canada, Ireland and India) are also examined in the context of particular principles, particularly when their respective jurisprudence is rather more developed on discrete points. The book examines how the relevant constitutional principles strive to maintain the primacy of the law-making role of the legislature in a representative democracy and yet afford the decisional independence of the judiciary that degree of protection essential to protect it from the legislature's 'impetuous vortex', to borrow the words of James Madison from The Federalist (No 48).
 

The Author
 
Dr Peter A Gerangelos is the Associate Dean (Undergraduate Studies) and Senior Lecturer in Law at the Faculty of Law, University of Sydney, Australia. He was previously Principal Solicitor in the Office of the Australian Government Solicitor.

Contents
 
Acknowledgements vii
Table of Cases xi
Table of Legislation xvii
1 Introduction 1
I. The Relevant Scenarios 3
II. Definitional Difficulties 7
III. The Original Legal Entrenchment of the Doctrine and
the Underlying Rationale 10
IV. The Possibility of General Principles and
Interpretational Methodology 14
V. The Purposive Nature of The Separation of Powers
Doctrine 29
VI. The Problem of Definition and the Formalist Approach 37
VII. Core Branch Functions? 40
2 Legislative Interference in the Pending Case Scenario: The
Foundation of Principle and the Australian Position 57
I. Introduction 57
II. The Australian Constitutional Position and the Early
Australian Constitutional Scholars 57
III. Early Development of Principle by the High Court 65
IV. The Foundation of a Discrete Set of Principles
Governing the Pending Case Scenario: Liyanage v R 67
V. Consolidation of Principle Post-Liyanage 74
VI. The Direction Rule at the Crossroads: Nicholas v The
Queen 90
VII. The Uncertain Status of the Direction Principle in
Australia 113
3 Legislative Interference with Judicial Functions: The
Jurisprudence of the United States, Evaluation of Principle, and
Towards Resolution 117
I. Introduction 117
II. The Emergence of the Changed Law Rule and the
Direction Principle in the United States 121
III. Klein and Its Uncertain Meaning 124
IV. Hart's Thesis and the United States Foundation of the
Direction Principle 131
V. The Decline of the Direction Rule: The Robertson Case 135
VI. Robertson's Uncertain Legacy: Plaut v Spendthrift Farm Inc 145
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VII. Klein Qualified, Overruled or Misinterpreted? Miller v
French 152
VIII. The Schiavo Litigation 162
IX. Further Confirmation of the Direction Principle 168
X. General Conclusions on the Separation of Powers and
the Pending Case Scenario 170
XI. Towards a Resolution 174
XII. A Reformulated Direction Principle 177
XIII. Speculative Propositions 180
XIV. Conclusion 186
4 The Separation of Powers and Final Judgments: Defining the
Principle Limiting Legislative Revision of Final Judgments 191
I. Introduction and Definition of Final Judgment 191
II. Reflections on Finality Where the Separation Doctrine
is Not Entrenched 195
III. A Middle Case: India 202
IV. Early Australian Commentary on the Constitutional
Protection of Final Judgments 206
V. The Current Australian Position 210
VI. Qualifications 212
VII. A Reinforcement of Australian Jurisprudence: The
Irish Position on Final Judgments 215
VIII. The United States Supreme Court and Final Judgments 217
IX. The Wheeling Bridge Qualification 222
X. The Development and Consolidation of Principle by
the United States Supreme Court 224
XI. The Inviolability Principle Tested: Miller v French 236
XII. Conclusion 245
5 Qualifications to the Inviolability of Final Judgments and
Final Summation 247
I. Introduction 247
II. The Wheeling Bridge Qualification, the Regulation of
Public Rights and 'Conditional' Final Judgments 249
III. The Waiver Qualification 251
IV. Conclusions on the Final Case Scenario 267
6 Protections Afforded Decisional Independence in Jurisdictions
without an Entrenched Separation of Powers 271
I. Introduction 271
II. The United Kingdom and the Separation of Powers 272
III. The European Convention on Human Rights 288
IV. The United Kingdom, the ECHR and the Human
Rights Act 1998. 302
V. Canons of Statutory Intepretation 306
7 Conclusion 311
Index 321


Regulating Deviance
The Redirection of Criminalisation and the Futures of Criminal Law
Edition: 1st
Series: Oñati International Series In Law And Society
Format: Paperback
Author: Edited by Bernadette McSherry, Alan Norrie and Simon Bronitt
ISBN: 9781841138909
Publishers: Hart Publishing
Price: £22
Publication Date: Dec 2008
 
Publisher's Title Information

The criminal attacks that occurred in the United States on 11 September 2001 have profoundly altered and reshaped the priorities of criminal justice systems around the world. Domestic criminal law has become a vehicle for criminalising 'new' terrorist offences and other transnational forms of criminality. 'Preventative' detention regimes have come to the fore, balancing the scales in favour of security rather than individual liberty. These moves complement already existing shifts in criminal justice policies and ideologies brought about by adjusting to globalisation, economic neo-liberalism and the shift away from the post-war liberal welfare settlement. This collection of essays by leading scholars in the fields of criminal law and procedure, criminology, legal history, law and psychology and the sociology of law, focuses on the future directions for the criminal law in the light of current concerns with state security and regulating 'deviant' behaviour.
 

Contents
 
Preface
List of Contributors
Part I: Introduction
1. Regulating Deviance: The Redirection of Criminalisation
and the Futures of Criminal Law
Bernadette McSherry, Alan Norrie and Simon Bronitt
Part II: Shifts in Criminal Justice Policies
2. Citizenship, Authoritarianism and the Changing Shape
of the Criminal Law
Alan Norrie
3. Fixing the Future? The Pre-emptive Turn in Criminal Justice
Lucia Zedner
4. 'Victim-Driven' Criminalisation? Some Recent Trends in the
Expansion of the Criminal Law
Leslie Sebba
Part III: The Quest for Security
5. Criminal Law, Human Rights and Preventative Justice
Andrew Ashworth
6. The Theory of Vulnerable Autonomy and the Legitimacy
of Civil Preventative Orders
Peter Ramsay
7. Expanding the Boundaries of Inchoate Crimes:
The Growing Reliance on Preparatory Offences
Bernadette McSherry
8. Social Science and Criminal Law Reform: Beyond Mere
Opinion Polling and Penal Populism
Mark Nolan
Part IV: The Scope and Justification of Sexual Offences
9. Criminal Law and Private Spaces: Regulating Homosexual
Acts in Singapore
Kumaralingam Amirthalingam
10. Moral Uncertainties of Rape and Murder: Problems at the
Core of Criminal Law Theory
Ngaire Naffine
Part V: Codification and The Liberal Promise
11. Criminal Codes in the 21st Century: The Paradox of the
Liberal Promise
Simon Bronitt and Miriam Gani
12. Faultlines Between Guilt and Punishment in Australia's
Model Criminal Code
Ian Leader-Elliott
Index
Bernadette McSherry is Professor of Law, Monash University and Australian Research Council Federation Fellow.
Alan Norrie is the Edmund-Davies Professor of Criminal Law and Criminal Justice, King's College London.
Simon Bronitt is Professor of Law and Director, National Europe Centre, the Australian National University.


A Responsibility to Assist
Human Rights Policy and Practice in European Union Crisis Management Operations
A COST Report edited by Tom Hadden
Edition: 1st
Format: Paperback
Author: Tom Hadden
ISBN: 1841139343
Publishers: Hart Publishing
Publication Date: February
 
Publisher's Title Information
 

This report, written as part of a wider review of human rights in EU foreign policy, describes and assesses the current decision-making structures and procedures for EU military, police and civilian crisis management missions throughout the world.
 
EU interventions or missions in non-member countries are a relatively recent development, and have largely been undertaken to ensure more effective co-ordination of humanitarian, peace-keeping, and peace building efforts by Member States in response to international conflicts and crises - and perhaps also to project the role of the EU as a major actor on the global stage. EU missions may involve the deployment of military forces in peace-keeping or peace enforcement operations, the deployment of military and police personnel in a preventive role or with a view to maintaining public order or controlling criminal activity, or they may involve the provision of civilian support for the rebuilding or redevelopment of the rule of law in countries where governmental structures have broken down. This report examines the incidence of these interventions, as well as their interaction with other bodies such as the UN, NATO, the African Union and voluntary coalitions, and the complex diplomatic and military negotiations leading to particular operations. The focus on assistance reflects the primary responsibility of the EU not to act independently of the UN and other international bodies but to provide support and assistance to the wider international community. The main aim of the report is not to provide a detailed analysis of the success or failure of particular missions, but is to describe the often complex and confusing structures developed over the past decade and to assess the past, present and future of the EU's responsibility to intervene in international crises.

 
Contents
 
List of tables, Figures and Charts ix
Introduction xi
Chapter 1: Development of Crisis-management Practice 1
United Nations Peace-keeping 1
A New World Order? 2
Problems in Practice 3
The Development of European Union Crisis-management Capacity 5
EU Military, CIVPOL and Rule of Law Operations/ActionsAn Overview 11
Military Operations 11
CIVPOL Operations 13
EU Rule of Law Operations 14
CFSPCommission External Relations Rapid Reaction Programmes
2001-06 16
Instrument for Stability (IfS) Actions 2007 19
Chapter 2: The Human Rights and Human Security Agenda 23
Human Rights and Human Security 24
The Full Range of Mission Objectives 25
Human Rights and Human Security Priorities at Each Level of Intervention 26
Conflict Prevention 26
Humanitarian Aid 26
Protection of Civilians and their Homes from Attack 27
Maintenance of Public Order and the Control of Criminality 27
(Re)Building National Security and Democratic Institutions 28
Economic and Social Development Objectives as an Integral Element
in All Crisis-management Missions 29
The control of Potential Abuses 29
Effective Control of the Use of Lethal Force 30
Prevention of Torture and Inhuman or Degrading Treatment 31
Prevention of Sexual Exploitation and Abuse 31
Prevention of Corruption 31
Establishing Effective Accountability 32
Minimising Disruptive Impacts 32
Conclusions and Recommendations 33
Chapter 3: Current Decision-making Issues and Procedures 35
Some General Concerns 35
Issues as to the Formal and Practical Competence of the European Union 36
Media Pressures and Risk Analysis 37
Resources and Finance 38
Relationships with the United Nations, NATO and other International
Bodies 41
Decision-making Structures and Procedures 43
Formal Structures 43
Decision-making procedures 46
Stage 1: Monitoring and the Identification of Potential Action 46
Stage 2: Development of a Crisis-management Concept 46
Stage 3: Approval of a European Union Mission by the Council of
Ministers 48
Stage 4: Preparation of Mission Documents 49
Stage 5: Training, Deployment and Implementation 49
Stage 6: Accountability and Post-mission Review 49
Some Conclusions 50
Problems in Practice 50
Identifying the Most Effective Role for the European Union 50
Reducing Unnecessary Duplication of Effort and Resources 51
Clarifying Decision-making Procedures for Civilian, Military and
Policing Missions 51
Reforming Financial Arrangements 52
Conclusions and Recommendations 52
Chapter 4: Relationships with the United Nations and NATO 53
Unavoidable Relationships 53
Relationships with the United Nations 54
Relationships with NATO 58
Problems in Practice 61
Financial Arrangements 62
Some Key Issues 64
(a) Greater Independence and Autonomy for European Union Missions? 64
(b) A Specialised Role for the European Union? 65
(c) Issues Relating to Command and Control and 'Rehatting' 66
Conclusions and Recommendations 66
Chapter 5: Mission Documentation: Mandates, Rules of Engagement &
SOMAs 67
Consent to Deploy and Status of Mission Personnel 67
Mission Documentation 69
Mandates, Operations Plans and Rules of Engagement for Military
Missions 71
Some Significant Issues 74
Command and Control 77
Command and Control in European Union Crisis Management
Operations 80
Political and Strategic Direction 81
Operational Command 82
Documentation for Police Missions 84
Documentation for Civilian Missions 85
Conclusions and Recommendations 85
Chapter 6: Recruitment, Training and Implementation 87
Introduction 87
Recruitment 88
Current European Union Training Structures 90
Specific Issues on Training for Human Rights: Learning from United
Nations Experience 93
Training Experience 96
In-mission Human Rights Training and Sensitisation 100
Implementation 101
Conclusions and Recommendations 103
Chapter 7: Accountability 105
Generic standards 105
Individual Legal Accountability 108
Some Options for Reform 114
(a) Relying on Host State Jurisdiction 114
(b) Strengthened Internal Mission Procedures 115
(c) Command Responsibility 115
(d) The Development of Joint Jurisdiction 116
Institutional accountability 118
Contents
State Legal Responsibility 118
Political Accountability 122
Conclusions and Recommendations 123
Appendix 1: Papers for Working Group I During the COST Action A28
Programme and Other publications 125
Appendix 2: ESDP Military, CIVPOL and Rule of Law Operations 127
 

The Author
 
Tom Hadden is an Emeritus Professor of Law at the Queen's University, Belfast and a member of its Human Rights Centre.


Judicial Review Handbook
Edition: 5th
Format: Hardback
Author: Michael Fordham
Foreword: by Lord Woolf, the former Lord Chief Justice.
ISBN: 9781841138244
Publishers: Hart Publishing
Price: £100
Publication Date: November
 
Publisher's Title Information

The Judicial Review Handbook is one of the leading works in public law, an indispensable source of reference and a guide to the burgeoning case law in judicial review. Established as an essential part of the library of any practitioner engaged in public law cases, the Judicial Review Handbook offers unrivalled coverage of administrative law, including, but not confined to the work of the Administrative Court and its procedures. But as anyone who has used the previous editions will acknowledge, it is much more than that. The completely revised and up-dated fifth edition is once again structured around 63 unique legal principles supported by a compendious compilation of sources and an unequalled selection of reported case quotations. It also includes essential procedural rules, forms and guidance issued by the Administrative Court.
 
This edition builds on previous editions with deepened coverage of the impact on judicial review of both the Civil Procedure Rules and the Human Rights Act 1998 which, at the time of the previous edition, were both new arrivals in English law. Their impact, and the plethora of cases which explore their meaning and application, are fully analysed and evaluated by Michael Fordham, and quotations from the cases incorporated into the unique appendices of case extracts.
 
"It is our first port of call when we have an administrative law problem". (Lord Woolf, from the Foreword to the Third Edition)
 

Table Of Contents
 
A. NATURE OF JUDICIAL REVIEW 3
keys to understanding what the Court is doing (P1-P25)
P1 PRACTICAL STEPS 5
1.1 Basic steps in a judicial review case 5
P2 SUPERVISORY JURISDICTION 7
2.1 Supervising public authorities. 7
2.2 Importance and range of subject-matter 10
2.3 Terminology 11
2.4 The Administrative Court 11
2.5 Some special procedural aspects 13
2.6 Strict case-management 19
P3 IMPACT 21
3.1 Remittal and repeatability 21
3.2 Sterile/counterproductive victories 23
3.3 Judicial review as a monetary springboard 24
3.4 Securing assurances/provoking comment 25
3.5 Wider impact/knock-on effect 27
P4 MATERIALITY 28
4.1 Practical substance and judicial review 28
4.2 Materiality/material flaw 30
4.3 Lack of prejudice 31
4.4 Futility 33
4.5 Dangers of materiality, prejudice and futility 35
4.6 Hypothetical/academic issues 37
4.7 Prematurity 41
P5 TARGETS 45
5.1 Judicial review and “decisions” 45
5.2 Spectrum of possible targets 47
5.3 Multiple targets/target-selection 50
P6 POWER SOURCES 52
6.1 Powers/duties: basic sources and hierarchy 52
6.2 Policy guidance 55
6.3 International law 60
P7 CONSTITUTIONAL FUNDAMENTALS 67
7.1 Legislative supremacy 67
xi
7.2 Rule of law/separation of powers 71
7.3 Principles of legality 72
7.4 Access to justice 73
7.5 Constitutional/common law rights 74
7.6 Basic fairness 79
7.7 Basic reasonableness 81
P8 EC LAW 83
8.1 EC law supremacy 83
8.2 EC Treaty rights 86
8.3 Judicial review for EC-incompatibility 87
8.4 Article 234 references to the ECJ 88
8.5 EC law damages/reparation 89
P9 THE HRA 91
9.1 HRA: key features and themes 91
9.2 Codified Convention rights 97
9.3 HRA ss.3-4: legislative compatibility/DOI 97
9.4 HRA s.6: compatible public authority action 102
9.5 HRA just satisfaction 104
P10 COOPERATION & CANDOUR 106
10.1 A cooperative enterprise 106
10.2 ADR/mediation 108
10.3 Claimant's duty of candour 109
10.4 Defendant/interested party's duty of candour 110
P11 PRECEDENT & AUTHORITY 113
11.1 Use of case-law 113
11.2 Academic commentary/comparative case-law 118
P12 VIGILANCE 122
12.1 Judicial review and the rule of law 122
12.2 Abuse Models 126
P13 RESTRAINT 128
13.1 “Soft” review: reasonableness 128
13.2 Restraint and factual questions 130
13.3 Restraint and discretion/judgment 132
13.4 Restraint and expertise 133
13.5 Judicial restraint in action 134
13.6 Protecting public authorities 137
13.7 Review from the decision-maker's point of view 138
table of contents
xii
P14 BALANCING 140
14.1 Judicial review and striking a balance 140
14.2 Striking a balance: grounds for judicial review 141
14.3 Holding the balance: nothing personal 142
14.4 Convenience and floodgates 143
P15 THE FORBIDDEN METHOD 146
15.1 “Soft” review: the forbidden substitutionary approach 146
15.2 “Not an appeal” 147
15.3 “Legality not correctness” 148
15.4 “Not the merits” 149
15.5 “Court does not substitute its own judgment” 150
P16 HARD-EDGED QUESTIONS 152
16.1 Hard-edged review: correctness 152
16.2 Precedent fact 152
16.3 Error of law as hard-edged review 153
16.4 Interpretation as a hard-edged question 154
16.5 Procedural fairness as hard-edged review 155
16.6 Hard-edged review: further matters 157
P17 EVIDENCE AND FACT 159
17.1 Judicial review evidence 159
17.2 Fresh evidence in judicial review 162
17.3 Judicial review and factual disputes 167
17.4 Disclosure, further information and cross-examination 171
P18 COSTS 178
18.1 Costs: general matters 178
18.2 Summary assessment/detailed assessment of costs 186
18.3 Costs and the permission stage 186
18.4 Costs and the public interest 189
18.5 Costs and discontinuance/early disposal 191
18.6 Special costs responses 194
P19 MAKING THE CLAIM 197
19.1 Pre-claim steps 197
19.2 Making the claim 198
19.3 Acknowledging the claim 199
P20 INTERIM REMEDIES 202
20.1 Interim remedies 202
20.2 The balance of convenience 206
table of contents
xiii
P21 PERMISSION 209
21.1 Granting or refusing permission 209
21.2 Case-management at the permission stage 215
P22 SUBSTANTIVE HEARING 220
22.1 Post-permission/pre-hearing steps 220
22.2 Third party participation 223
22.3 Disposal without a hearing 230
22.4 The substantive hearing 231
P23 APPEAL 236
23.1 Permission appeal 236
23.2 Substantive appeal 239
P24 REMEDIES 242
24.1 Unified remedies 242
24.2 The declaration 242
24.3 Remedy as a discretionary matter 245
24.4 The remedies in action 249
P25 MONETARY REMEDIES 256
25.1 Availability of debt, restitution and damages 256
25.2 No damages for maladministration 259
25.3 Recognised species of reparation claim 261
B. PARAMETERS OF JUDICIAL REVIEW 267
further dominant themes shaping the law and practice (P26-P44)
P26 DELAY 269
26.1 The approach to delay 269
26.2 Promptness and the running of time 274
26.3 Good reason to extend time 278
26.4 Hardship, prejudice and detriment 284
P27 PUBLIC/PRIVATE 287
27.1 The public/private distinction 287
27.2 Public law principles outside CPR 54 288
27.3 Procedural exclusivity: abuse of process 290
P28 OUSTER 294
28.1 The approach to legislative preclusive clauses 294
28.2 Time-limit ousters 296
table of contents
xiv
P29 INTERPRETATION 298
29.1 The purposive approach to interpretation 298
29.2 Legislative purpose and judicial review 300
29.3 Statutory interpretation 301
29.4 Using Hansard 309
29.5 Interpreting other sources 313
P30 FUNCTION 318
30.1 Understanding the defendant's function 318
30.2 Traditional functional labels 319
30.3 The judicial/administrative distinction 319
30.4 Other aspects of function 321
P31 CONTEXT 324
31.1 Contextualism 324
31.2 Circumstances 325
31.3 Characteristics and conduct of the claimant 326
31.4 Claimant's failure to complain/raise the concern at the time 328
31.5 The Court's controlling discretion/judgment 331
31.6 “Flexi-principles” 333
P32 MODIFIED REVIEW 335
32.1 Part-reviewability of Crown Courts 335
32.2 Judicial review of decisions regarding legal process 337
32.3 Anxious scrutiny 341
32.4 Other modified review situations 345
P33 FLUX 349
33.1 The developing law 349
33.2 Lessons from the past 352
33.3 “Two-stage” approaches to legal development 353
33.4 Forecasting 354
P34 REVIEWABILITY 356
34.1 Surveying the field 356
34.2 Principles of reviewability 358
34.3 Conquests of reviewability 362
P35 NON-REVIEWABILITY 365
35.1 Special functions and immunity from review 365
35.2 Private law matters 370
P36 ALTERNATIVE REMEDY 374
36.1 General effect of other safeguards 374
36.2 Exclusive alternative remedy 375
table of contents
xv
36.3 Alternative remedy and discretion/case-management 376
36.4 Other remedy curing public law wrong 385
P37 PROPORTIONALITY TEMPLATE 388
37.1 Proportionality principles 388
P38 STANDING 391
38.1 The requirement of sufficient interest 391
38.2 The approach to sufficient interest 394
38.3 Standing at the permission/substantive stages 398
38.4 Standing under the HRA: the victim test 400
P39 DISCRETION/DUTY 401
39.1 No unfettered powers 401
39.2 Discretion/power: the essential duties 402
39.3 Discretion and duty in action 406
P40 INALIENABILITY 411
40.1 Preservation of powers and duties 411
40.2 Inalienability and estoppel/legitimate expectation 412
P41 LEGITIMATE EXPECTATION 417
41.1 The role of legitimate expectation 417
41.2 Basic anatomy of a legitimate expectation 422
P42 ONUS 428
42.1 Onus generally on the claimant 428
42.2 Onus on the defendant in particular contexts 429
P43 SEVERANCE 432
43.1 Severability 432
P44 NULLITY 435
44.1 Invalidity labels 435
44.2 Flaws constituting “nullity” 436
44.3 Purpose/effect of “nullity” 437
C. GROUNDS FOR JUDICIAL REVIEW 441
public law wrongs justifying the Court's intervention (P45-P63)
P45 CLASSIFYING GROUNDS 443
45.1 The conventional threefold division 443
45.2 Root concepts and unifying themes 445
table of contents
xvi
45.3 Reviewing discretion: Wednesbury and abuse of power 446
45.4 Overlapping grounds and interchangeable labels 448
P46 ULTRA VIRES 452
46.1 Basic meanings of ultra vires 452
46.2 Rights-violation as ultra vires: the principle of legality 454
46.3 Interpretation to allow validity: reading down/reading in 455
P47 JURISDICTIONAL ERROR 458
47.1 Jurisdiction/jurisdictional error as a flexi-principle 458
47.2 Jurisdictional error as hard-edged review (correctness) 460
47.3 Error of law and jurisdictional error 461
P48 ERROR OF LAW 463
48.1 Error of law/misdirection in law 463
48.2 Error of law: restricted categories 465
P49 ERROR OF FACT 467
49.1 Precendent Fact 467
49.2 Fundamental error of fact 468
P50 ABDICATION/FETTER 475
50.1 Basic duty not to abdicate/fetter 475
50.2 Acting under dictation 476
50.3 Improper delegation 477
50.4 Fetter by inflexible policy 479
P51 INSUFFICIENT INQUIRY 483
51.1 Duty of sufficient inquiry 483
51.2 Whether material fairly presented/properly addressed 483
P52 BAD FAITH/IMPROPER MOTIVE 487
52.1 Bad faith 487
52.2 Improper motive 488
P53 FRUSTRATING THE LEGISLATIVE PURPOSE 491
53.1 Duty to promote the legislative purpose 491
P54 SUBSTANTIVE UNFAIRNESS 494
54.1 Substantive unfairness 494
54.2 Unjustified breach of a substantive legitimate expectation 499
P55 INCONSISTENCY 502
55.1 Equal treatment, non-arbitrariness and certainty 502
55.2 Unjustified departure 508
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xvii
P56 RELEVANCY/IRRELEVANCY 511
56.1 The relevancy/irrelevancy principle 511
56.2 Obligatory and discretionary relevance 515
56.3 Relevance and weight 517
P57 UNREASONABLENESS 520
57.1 The unreasonableness principle 520
57.2 High threshold epithets 521
57.3 Species of unreasonableness 523
57.4 Unreasonableness in action 524
P58 PROPORTIONALITY 527
58.1 Proportionality and the common law 527
58.2 Proportionality as part of reasonableness 529
58.3 Common law proportionality: rights and penalties 531
58.4 Proportionality and scrutiny of evidence/reasoning 533
58.5 Latitude and intensity of review 535
P59 HRA-VIOLATION 541
59.1 Testing for an HRA-violation 541
59.2 Article 2: life 543
59.3 Article 3: cruelty 544
59.4 Article 5: liberty 545
59.5 Article 6: fair-hearing 547
59.6 Article 8: privacy 554
59.7 Article 10: expression 557
59.8 Article 14: non-discrimination 558
59.9 Article 1P: property-interference 561
59.10 Further Convention rights and provisions 562
P60 PROCEDURAL UNFAIRNESS 567
60.1 The basic concept of fairness 567
60.2 Procedural fairness as a flexi-principle 574
60.3 Procedural fairness: supplementing the legislative scheme 576
60.4 Procedural ultra vires 578
60.5 The basic right to be heard 580
60.6 Adequate consultation 584
60.7 The basic right to be informed 587
60.8 Other rights of procedural fairness 594
P61 BIAS 597
61.1 Automatic disqualification 597
61.2 Actual bias 598
61.3 Apparent bias 599
table of contents
xviii
P62 REASONS 603
62.1 Importance of reasons in the developing law 603
62.2 Judicial review for failure to give reasons 606
62.3 Adequacy of reasons 611
62.4 Timing of reasons 616
62.5 Remedy for lack/insufficiency of reasons 621
P63 EXTERNAL WRONGS 623
63.1 External wrongs 623
D. MATERIALS 625
key sources of rules and procedure (64.1-64.10)
64.1 Supreme Court Act 1981 s.31 627
64.2 Civil Procedure Rules Part 54(I) 628
64.3 Civil Procedure Rules Part 54 Practice Direction 639
64.4 Administrative Court Office Notes for Guidance 645
64.5 Judicial Review Pre-Action Protocol 658
64.6 Judicial Review Urgent Cases Procedure 666
64.7 Human Rights Act 1998 668
64.8 Form N461 691
64.9 Form N462 697
64.10 Form N463 700
64.11 A List of Articles 702
Table of Cases* 703
Table of Legislation 809
Table of Statutory Instruments 815
Index
 

Reviews to Date
 
...remains the clearest statement on JR matters for all concerned in such proceedings...[Michael Fordham] has.written the best statement of principle to extract, classify and illustrate cases which we have for issues of judicial review where the emotions run high between the public and the state: this handbook has now matured to become the institution it is today although I had a feeling it would when I used the first edition fourteen years ago for drafting, and I haven't changed my view of the help this work gives me: it is my new best JR friend.
Phillip Taylor
Richmond Green Chambers
December 2008
 

The Author
 
Michael Fordham Q.C. is a barrister and a member of Blackstone Chambers, specialising in public law and human rights. As a prominent member of the English public law bar, he has been involved in many leading judicial review cases in recent years. He was Human Rights Lawyer of the Year 2005, Public Law Junior of the Year 2005, winner of the Bar Pro Bono Award 2006 and has just been named Human Rights and Public Law Silk 2008. He is the founding editor, and currently joint editor, of Judicial Review.

I have to Move My Car
Edition: 1st
Format: Hardback
Author: David Pannick
ISBN: 9781841138169
Publishers: Hart Publishing
Price: £10.99
Publication Date: 2008
 
Publisher's Title Information
 

There are law books about constructive trusts, the Perpetuities and Accumulations Act 1964 and the rule in Foss v Harbottle. This is not one of them. David Pannick QC has always been much more interested in unpersuasive advocates and injudicious judges.
 
In this collection of his fortnightly columns from The Times, David Pannick passes judgment on advocates who tell judges that their closing submissions to the jury will not take long because 'I would like to move my car before five o'clock'; and he sentences judges who claim to have invisible dwarf friends sitting with them on the Bench, who order the parties to 'stay loose as a goose', and who signal their rejection of an advocate's argument by flushing a miniature toilet on the bench.
 
In making his submissions, David Pannick QC will entertain and inform you about judges, lawyers, legal entertainment and unusual litigation.
 

The Author
 
David Pannick QC writes a fortnightly legal column in The Times. He is a barrister at Blackstone Chambers in the Temple, London, where he specialises in all aspects of public law and human rights. He has been a Fellow of All Souls College, Oxford since 1978 and is the general editor, with Lord Lester of Herne Hill QC, of Human Rights Law and Practice 2nd edn (Butterworths, 1999, March 2004).


Parliamentary Sovereignty and the Human Rights Act
Edition: 1st
Format: Hardback
Author: Alison L Young
ISBN: 9781841138305
Publishers: Hart Publishing
Price: £45
Publication Date: Dec 2008
Publisher's Title Information
 

The Human Rights Act 1998 is criticised for providing a weak protection of human rights. The principle of parliamentary legislative supremacy prevents entrenchment, meaning that courts cannot overturn legislation passed after the Act that contradicts Convention rights. This book investigates this assumption, arguing that the principle of parliamentary legislative supremacy is sufficiently flexible to enable a stronger protection of human rights, which can replicate the effect of entrenchment. Nevertheless, it is argued that the current protection should not be strengthened. If correctly interpreted, the Human Rights Act can facilitate democratic dialogue that enables courts to perform their proper correcting function to protect rights from abuse, whilst enabling the legislature to authoritatively determine contestable issues surrounding the extent to which human rights should be protected alongside other rights, interests and goals of a particular society. This understanding of the Human Rights Act also provides a different justification for the preservation of Dicey's conception of parliamentary sovereignty in the UK Constitution.
 

Contents
Preface v
Table of Cases xi
Tables of Legislation xiii
1 INTRODUCTION 1
I. Defining Parliamentary Sovereignty: Dicey's Conception 2
II. The Compatibility of the Human Rights Act 1998 with Dicey's
Theory of Parliamentary Sovereignty 3
A. Section 19: the Manner and Form Challenge 5
B. Section 10: the Henry VIII Challenge 6
C. A Constitutional Statute? 9
D. Dialogue and Duality 10
E. Evaluation 12
(i) Sovereignty, Interpretation and Implied Repeal 12
(ii) Defining Legally Valid Legislation 14
III. Sovereignty Explored 15
A. Continuing Parliamentary Legislative Supremacy 15
B. Perspectives of Parliamentary Sovereignty 17
IV. In Defence of the Human Rights Act 1998 22
A. Could the United Kingdom Constitution provide for a Stronger
Protection of Rights without Breaching Sovereignty? 22
B. Should Convention Rights be Entrenched? 25
V. In Defence of Dicey 28
2 INTERPRETATION AND IMPLIED REPEAL 31
I. Continuing Parliamentary Legislative Supremacy and the Doctrine
of Implied Repeal: the Orthodox Account 32
II. The Narrow Scope of Implied Repeal 35
A. General Presumption against Implied Repeal 36
B. Generalia Specialibus Non Derogant 39
C. Constitutional Statutes 40
D. Conflict between two Statutes on the same Subject? 45
E. Specific Repeal 49
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III. How to give Human Rights an 'Entrenchment Effect' 54
A. Construe and Give Effect 54
B. Dominant and Subordinate Statutory Provisions and the
Principle of Legality 57
C. Misfired Statutes 60
IV. Conclusion 61
3 REDEFINITION AND THE RULE OF RECOGNITION 65
I. Continuing and Self-embracing Parliamentary Legislative
Supremacy 66
II. Manner and Form and Redefinition 68
A. Why can Manner and Form provisions be Entrenched? 68
B. Redefinition and Continuing Theories of Parliamentary
Legislative Supremacy 71
III. Methods of Entrenchment 75
A. Modification of Rules of Action 77
B. Modification of the Rule of Recognition 82
(i) Modification of the Supreme Criterion 85
(ii) Core and Penumbra 86
(iii) Rule of Recognition and Parliamentary Legislative
Supremacy 87
(iv) Practical Problems 90
IV. Conclusion 93
4 DEMOCRACY AND RIGHTS 95
I. Dicey and Democracy 96
A. Factual Accuracy 98
B. Self-Correcting Unitary Democracy? 101
II. Constitutional Rights 103
III. Democratic Dialogue 112
IV. Conclusion 114
5 DEMOCRATIC DIALOGUE AND THE HUMAN RIGHTS ACT 1998 115
I. Models of Dialogue 116
A. Defining Democratic Dialogue 117
II. Justification of Democratic Dialogue 118
A. Practical Problems 119
B. Finding the Right Balance 121
viii Contents
(A) Young Prelims 14/11/08 16:03 Page viii
C. Justifying the Assumptions underlying Democratic Dialogue:
Jeremy Waldron 122
D. Consensus, Dissensus and Prolife: an Example 123
E. Distinguishing between Consensus and Dissensus: Core and
Penumbral Applications of a Human Right 124
F. Distinguishing between Consensus and Dissensus: Ronald
Dworkin's Easy and Hard Cases 125
III. Justifications of the Human Rights Act 1998 127
A. Justifications of Democratic Dialogue 128
B. Applying Justifications of Democratic Dialogue to the Human
Rights Act 128
C. The Human Rights Act, 'Definitive Conclusions' and Theories
of Rights 130
IV. Dialogue and Institutional Competences 132
A. Protection of Minority Rights 132
B. Protection of Long-standing Principles 135
C. Protection of Specific Individual Rights 137
D. Interstitial Changes 138
V. Towards a Theory of Adjudication 139
A. Institutional Competences and the Remedial Consequences 139
B. Identifying Cases where it is Reasonable to Disagree about
Rights Issues 140
C. Institutional Features and Remedies 141
D. Democratic Dialogue and Principles of Interpretation 141
E. Conclusion 142
VI. Conclusion 143
6 A THEORY OF ADJUDICATION 145
I. The Current Legal Test 146
A. Analysis: Compatibility of the Current Law with a Democratic
Dialogue Model of Adjudication 147
B. An Example: Bellinger v Bellinger 148
C. Conclusion 152
II. A New Theory of Adjudication 152
A. Interpretation 153
B. Deference and Adjudication 154
C. An Emerging Legal Test 156
III. Conclusion
 

The Author
 
Alison Young is a Fellow and Tutor in Law at Hertford College, Oxford.

LINKS