ACCESSION to the European Convention on Human Rights (ECHR) has long been on the EU's political agenda. The EU's membership of the ECHR is not only seen as symbolically significant, but is also aimed at filling an important gap in the enforceability of human rights across Europe. At present, the EU cannot be brought before the European Court of Human Rights (ECtHR) and, while all EU Member States are parties to the ECHR, as long as the EU protects fundamental rights to a standard equivalent to that required under the ECHR, Member States cannot be held responsible for alleged violations of the Convention resulting from EU law either (Bosphorus v Ireland (2006) 42 E.H.R.R. 1).

THE principles for recovering monetary relief for losses to express trusts have recently been uncertain, especially in “commercial” situations. Where trustees undertook to hold money on trust for a lender and to advance the money to a borrower after receiving security documents, the trustees no doubt breach the trust by advancing the money without first receiving the security documents. However, since Target Holdings v Redferns [1996] A.C. 421, it has been uncertain what measure of relief the lender-beneficiary can recover – and especially whether the measure differs according to (1) whether the form of relief claimed is a general accounting or “equitable compensation” for only particular defaults or (2) whether the circumstances are “commercial”. Under the accounting doctrines as traditionally applied, trustees unable to vouch for trust assets they earlier received could not reduce their liability by showing that part or all of the loss would have been suffered even had they performed the trust correctly. The trustees were responsible for the misapplied sum regardless of causal enquiries. But, in Target, the House of Lords – emphasizing the commercial nature of the case – denied a lender-beneficiary's claim to recover the full sum wrongly disbursed by trustees. The significance of the case has been contested. Did Target change a fundamental norm of monetary relief for losses suffered through breach of trust – a norm applicable regardless of whether the form of relief claimed is a general accounting or equitable compensation for only particular defaults? Did Target instead leave the traditional accounting doctrines untouched, and create a new remedy of equitable compensation for breach of trust? Or did Target establish a “commercial” exception to traditional principles of trustee accountability, an exception limiting the quantum of relief? Indeed, was Target decided per incuriam?

IN a groundbreaking decision, the Supreme Court of Canada in Carter v Canada (Attorney General) 2015 SCC 5 has declared the criminal law measures prohibiting the provision of assistance in dying unconstitutional. In doing so, the Supreme Court unanimously overruled its previous decision (Rodriguez v British Columbia (Attorney-General) [1993] 3 S.C.R. 519) upholding the blanket prohibition on assisted suicide.

THE recent judgment of the Court of Justice of the European Union in the case of Dano (ECLI:EU:C:2014:2358) clarified some important points as regards access to social welfare benefits by EU citizens who move to another Member State. Furthermore, the judgment could have broad implications for any attempts by the UK Government to renegotiate the UK's membership of the EU, which is likely to focus on benefits for EU citizens coming to the UK. This note is an updated and expanded version of my analysis on the EU Law Analysis blog: http://eulawanalysis.blogspot.co.uk/2014/11/benefit-tourism-by-eu-citizens-cjeu.html.

IN Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), the International Court of Justice (“ICJ” or “Court”) dealt with a claim by Croatia that Serbia was responsible for the commission of genocide against ethnic Croatians in contravention of the Convention on the Prevention and Punishment of the Crime of Genocide (“the Convention”), and with Serbia's counter-claim that Croatia had committed genocide against ethnic Serbs also in breach of the Convention. In its judgment of 3 February 2015, the Court dismissed both the claim and counter-claim. While many of the acts complained of constituted the actus reus of genocide, there was no evidence that they had been perpetrated with the required mens rea, namely the intention to destroy, in whole or in part, the targeted group as such.

IN R. v Golds [2014] EWCA Crim 748, the Court of Appeal was asked to clarify the meaning of “substantially impaired” in the partial defence of diminished responsibility in murder cases. By virtue of s. 2(1) of the Homicide Act 1957, as amended by the Coroners and Justice Act 2009, s. 52, diminished responsibility is made out where:

1. (1) … D was suffering from an abnormality of mental functioning which –

   1. (a) arose from a recognised medical condition,

   2. (b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and

   3. (c) provides an explanation for D's acts and omissions in doing or being a party to the killing.

2. (1A) Those things are –

   • to understand the nature of D's conduct;

   • to form a rational judgment;

   • to exercise self-control. …

THE ECtHR has for the second time in three years engaged with the British Government's handling of whole-life prison terms. In Hutchinson v United Kingdom (Application no. 57592/08), Judgment of 3 February 2015, not yet reported, the Fourth Section accepted the authoritativeness of an English court's decision on the meaning of English law relating to the Home Secretary's discretion to reduce a whole-life sentence. It also yielded to national judges on whether this sentence review mechanism complies with the proscription on inhuman and degrading treatment in Article 3 of the ECHR.

THE tension between the competing values of security and human rights in the fight against terrorism was the subject of the ECtHR (Fourth Section) decision of Ibrahim v Others v the United Kingdom (Application nos. 50541/08, 50571/08, 50573/08, and 40351/09), 16 December 2014. Two weeks after the London bombings of 7 July 2005, bombs were detonated on the London transport system but failed to explode. After the first three applicants were arrested on suspicion of detonating the bombs, they underwent “safety interviews” which are conducted urgently for the purpose of protecting life and preventing serious damage to property, without any solicitor present and before the suspect can seek legal advice, as authorized under the Terrorism Act 2000. At the start of the “safety interviews”, instead of the “old-style” caution which reminds the suspect of his right to silence and informs him that anything said may be given in evidence, the police wrongly issued the “new-style” caution, which reminds the suspect of his right to silence and informs him that the court can draw adverse inferences at trial from his silence. This was contrary to s. 34(2A) of the Criminal Justice and Public Order Act 1994, which states that adverse inferences cannot be drawn at trial if the defendant did not have the opportunity to consult with a solicitor prior to questioning. During the “safety interviews”, the first three applicants denied any involvement in or knowledge of the detonation, but, at trial, they acknowledged their involvement in the detonation yet claimed that the bombs had been a hoax and were never intended to explode. The statements taken at their “safety interviews” were admitted at trial. The fourth applicant, Abdurahman, was initially interviewed by the police as a witness. When he started to incriminate himself by discussing the assistance he provided to one of the suspects, the police did not, at that stage, arrest him and inform him of his rights to silence and to legal inform as required under the Police and Criminal Evidence Act 1984 Code of Practice C; they only did so after having further questioned him as a witness and having taken a written statement from him. His written statement was admitted at trial.

A medical practitioner's role as adviser prior to treatment is crucial in providing the basis on which the patient consents to a procedure or not. In Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] A.C. 871, the House of Lords confirmed the applicability of the “Bolam” test, historically the province of treatment cases, to cases concerning the disclosure of risks. By a majority decision, although without a clear ratio, the question of what risks a practitioner should disclose was regarded as matter for clinical judgment. Where a practitioner could demonstrate that he had disclosed an amount of information that was in keeping with the practice of a responsible body of medical opinion, this would defeat a claim in negligence. Lord Bridge provided two exceptions: first where there was a substantial risk of grave adverse consequences, an example of which he gave as the 10% risk of a stroke, and, secondly, where the patient had specifically questioned the practitioner. In both circumstances, the risk ought to be disclosed regardless of settled medical practice. Lord Scarman dissented on the basis that the analytical starting point in disclosure cases was the patient's right to know what risks they would be subjected to; this was not a matter for clinical judgment.

IN R. (Moseley) v Haringey LBC [2014] 1 W.L.R. 3947, the Supreme Court unanimously upheld a judicial review challenge to the legality of a public consultation carried out by the defendant pursuant to a statutory duty to consult on proposed changes to Council Tax. However, more significant than the outcome is the marked divergence in the reasoning of different Justices. This divergence reflects wider tensions within the field of common law judicial review which have emerged over the last year. In particular, some judges have shown renewed enthusiasm for analysing review cases in terms of “rights”, which may foreshadow a major shift in the nature of review. Common law judicial review is seemingly approaching a crossroads. Which route is taken will have significant implications for the future of the field.

THE media were unsurprisingly interested when the Supreme Court considered the case of a poverty-stricken New Age traveller turned multi-millionaire whose former wife appeared years after divorce to claim a share of his subsequently acquired wealth (Vince v Wyatt [2015] UKSC 14). The case also raised an important point of legal principle.

In Novoship (UK) Ltd. v Nikitin, a unanimous Court of Appeal held that an account of profits can be granted against a third party who dishonestly assists a breach of fiduciary duty. This raises fundamental questions as to the status of gain-based relief in relation to secondary wrongs. An account of profits reflects the imperatives of fiduciary duty and it is questionable whether the remedy should be extended to a stranger to that relationship. This article will analyse the spectrum of secondary liability and suggest an appropriate demarcation of compensation and disgorgement.

Distinguishing “comment” from allegations of “fact” within the defamation defence of fair comment has long been notoriously difficult. While the defence has recently been replaced by a statutory “honest opinion” defence, the distinction remains highly relevant. There is a real need for judicial determination of the treatment of factual inferences within the defence. In recent years, some judgments have equated “comment” with unverifiable opinions, which would exclude verifiable factual inferences from the defence. This is inconsistent with the defence's aims to protect public reasoning and contrary to its history. We explain how a better approach is possible for English courts.

The economic torts were developed to regulate excessive competitive practice. They had the limited function of stretching existing civil liability where a defendant deliberately inflicted economic harm on a claimant, through the use of an intermediary. However, claimants seek to expand the function of the unlawful means and conspiracy torts so that they can fill “gaps” in existing tort liability, to regulate commercial misbehaviour more generally. In light of this phenomenon, the aim of this article is to analyse the modern approach to these torts in the English, Canadian, Australian, and New Zealand courts.

I argue that process and substance are two aspects of the public law form and that the form conditions the content of the law. The reduction of a political programme to the explicit terms of a statute involves a conversion of policy into public standards, which produces a kind of legal surplus value. It brings into being a particular type of public standard – one that permits the operation of the principles identified by Lon L. Fuller as the desiderata of the inner morality of law, and which enables individual claims of right based on legal principle to be adjudicated.

In October 2010, the UK Parliament brought into effect law that replaced the partial defence to murder of provocation with a new partial defence of “loss of control”, applicable to England, Wales, and Northern Ireland. Although it retained some key features of its controversial predecessor, the new partial defence was in part designed better to address the gendered contexts within which a large number of homicides are committed. In examining the impact of the reforms, we will focus on long-held concerns about the treatment of sexual infidelity as a trigger for loss of control in murder cases. The article undertakes an analysis of English case law to evaluate the way in which sexual infidelity-related evidence has influenced perceptions of a homicide defendant's culpability, for the purposes of sentencing, both before and after the implementation of reform. The analysis reveals that, in sentencing offenders post reform, the higher courts have failed to follow the spirit of the reforms respecting the substantive law by effecting a corresponding change in sentencing practice.

The relevance of public interests in private law is at the heart of some central divides in tort scholarship. This paper argues that public interests pervade private nuisance cases. The uncertain and contested nature of public interests, and the absence in both the case law and the scholarly literature of an abstract definition of what is to count as a public interest, do not prevent these matters from playing a significant role in tort. In these circumstances, it is important to reflect on how we might set about articulating the public interest. This paper argues that administrative decisions that are intended to serve the public interest can in some cases provide a defensible vision of public interest for the purposes of private law. An examination of the process by which regulatory decisions were reached can provide indicators to assist in identifying and evaluating the strength of claimed public interests.