Although those sentenced to life imprisonment have no right to release, a life sentence rarely involves imprisonment for the remainder of a convicted offender's natural life. Life prisoners may hope for early release on the so-called “life-licence”, whereby they remain liable to be recalled to prison for the rest of their lives.

In June 1993 in R v. Taylor the Court of Appeal quashed the murder convictions of two young women on grounds (inter alia) of prejudicial press coverage of the original trial. In October 1993 three police officers charged with conspiring to pervert the course of justice following the release of the Birmingham Six had their prosecution stayed. The court accepted the argument that adverse publicity made a fair trial impossible.

The Offences Against the Person Act 1861 is much disparaged by today's criminal lawyers. Its provisions have been described as “impenetrable” by the Court of Appeal. The House of Lords could not conceal its dissatisfaction with what is called “the irrational result of this piecemeal legislation”. Andrew Ashworth has written of the “antiquated and illogical structure” of an Act which the Law Commission regards as “unsatisfactory in very many respects”. Most recently Brooke J., launching the latest version of the Commission's reform package, lambasted the operation of the 1861 Act as “a disgrace”, and claimed that this hostile view is shared in every corner of the criminal justice system.

When the coach carrying Mr. and Mrs. Houghland from Ternhill to Cheshire arrived at its destination, Mrs. Houghland's suitcase could not be found. The suitcase had been loaded on to one of Low's coaches at Southampton, but this coach had broken down at Ternhill and the luggage had been transferred by the passengers to the luggage compartment of a relief vehicle which had arrived some three hours later. The coach company was unable to trace the case or to explain how it had disappeared and in a subsequent claim, either for its value or for damages for its loss, the County Court found in Mrs. Houghland's favour. An appeal to the Court of Appeal was dismissed.

It is well established that a party seeking an interlocutory or a Mareva injunction is required to give a cross-undertaking in damages as a condition of being granted the order sought. Equally settled is the principle that the undertaking in damages may be invoked in two situations. First, when the injunction is discharged before trial on the ground that it should never have been granted and, secondly, if at the end of the trial the party enjoined obtains a favourable judgment vindicating his claims in the action. Yet the principles governing a decision whether to enforce the undertaking are inadequately articulated. Two reasons have combined to contribute to this state of affairs: the fact that the award of damages is considered to be discretionary and the small number of instances in which the courts have been asked topronounce on the subject. However, the great rise in applications for interlocutory relief, whether by way of interim or Mareva injunctions or Anton Piller orders, has commensurably increased the importance of this subject. A number of recent decisions stand witness to this tendency and underscore the need for a thorough treatment of the topic.

The objective of this article is very limited, but if realised, I believe it has far-reaching implications. I want to examine the narrow topic of Unger's approach to rights. In exploring this objective I shall not be concerned with considering Unger's general approach to law, or with other aspects of his legal theory. Nor shall I question the assumptions that Unger may be making about the human condition or the nature of the world in which we live. Ignoring these wider concerns, my objective is to demonstrate that the new rights of Unger's deviationist doctrine in fact embody the old rights of legal formalism that their author has purported to abandon. The implications are twofold. First, for Unger's general enterprise: if it turns out that there is nothing new in his radical showpiece of rights, then some aspersions must be cast on the claims of novelty and radical efficacy made for “the program of empowered democracy” in which this showpiece is set.