Showing papers in "Modern Law Review in 1995"

Tort, Insurance and Ideology

Abstract: When misfortune befalls an individual, our social and legal arrangements may provide a variety of responses other than to let the losses associated with it lie where they fell. For example, the misfortune may have been the subject of private insurance taken out by the victim and at a level the victim chose. The risk of the misfortune may have been socialised by being covered by, say, a scheme of social insurance or social welfare. A third response is restoration of the victim, that is provision to the victim of a financial measure which attempts as far as money is able to return the victim to the position he was in before the misfortune occurred. Clearly, tort qualifies as a form of the third response because the measure of damages in tort is restorative of the victim; but is it also a form of the first two responses and, if so, what are the ramifications of this? Each of these three responses has its own rationale and, though any combination of responses may be triggered in the event of a misfortune, they often compete as alternatives in public policy debates about misfortune. Over time, the outcome of this competition displays certain trends. In this century, until about the late 1970s, there was a rise in the incidence of the insurance response but an even more dramatic rise in public policy reliance on the socialisation of risk across an increasing range of misfortunes. Parallel to this has come a general broadening of the catchment of situations recognised by the courts as giving rise to tort entitlements. In the past 20 years, however, concern has mounted in some quarters that both the latter trends (socialisation of risk and tort expansion) have gone too far and that such support for misfortune is now so over-developed that it stifles initiative by fostering a dependency culture and infringes the autonomy of those who are forced to finance these structures. The degree to which one shares this concern, if at all, will depend on one's politics. It is not a legal question. My aim in this article is to emphasise that whether one thinks the existing catchment of tort (or existing forms of social insurance and social welfare) should be reduced, leaving individuals merely with the support they can afford from Elrst party insurance or hope to receive from charity, is profoundly a matter of ideology. The reason this requires emphasis is that confusing tort with the other forms of support for misfortune can lead, and has recently led in the United States, to the presentation of these choices as apolitical and their resolution in favour of retrenchment of tort as merely the working through of inexorable logic. In this article I will deal with tort's relationship with insurance.l Concentrating first on the common but vague claim that tort is somehow 'about insurance,' I will argue that neither actual insurance nor insurability are or should be relevant to the reach and shape of tort liability. I then hope to explain why continued confusion on this point can lead to the conflation of tort with the insurance model of response to misfortune. Once this 'tort as insurance' construction of liability is embraced, the normative agenda for the future of tort inexorably points to retrenchment: an agenda, it can then be claimed, which arises from the mere logic of what tort is

Comparative Legal Studies and Commitment to Theory

Abstract: Peter de Cruz, A Modern Approach to Comparative Law, Deventer: Kluwer, 1993, x + 350 pp, Dfl 90.

Assisted Suicide in the Netherlands: The Chabot Case

Abstract: In earlier decisions the Dutch Supreme Court has recognised a defence of 'necessity," under narrowly-defined circumstances, to a charge of performing euthanasia.2 Its most recent decision deals with assistance with suicide in the case of a person whose suffering is not of somatic origin. The case is of general interest and has been widely (and not always accurately) invoked in discussions outside the Netherlands. It therefore seems useful to make the Court's decision itself available in English. The decision of the Supreme Court is presented below. All but some purely formal passages have been translated directly and in full. Direct translation is indicated by quotation marks. All footnotes have been added. The statement of facts is taken from the decision of the Court of Appeals. The translation is followed by some comments on the decision itself and on some of the reactions to it, ending with a brief reflection on the question: what is slipping from where to where on the notorious 'slippery slope'?

Change of Position

Abstract: Proof of a defendant's unjust enrichment at the expense of the plaintiff constitutes a prima facie obligation to make restitution. Nevertheless, an action for restitution will be denied if the defendant can establish a positive defence. Change of position is the most recent addition to the set of defences available to the defendant. It presents great potential for the development and rationalisation of the law of restitution. However, courts recognising change of position have, in general, confined their analyses of the defence to the specific facts presented for their consideration and have refused to enter into a wider examination of its scope. Thus, a cloud of uncertainty surrounds the availability of change of position. Some jurists have taken noteworthy steps towards clarification of the defence; however, many issues are yet to be addressed and there is little consensus as to the justifiable limits of change of position. This article is an attempt to redress this state of affairs.

Contracts in the National Health Service Internal Market

Abstract: This article will consider one aspect of the structure of the National Health Service (NHS) which was created by the reforms of the NHS and Community Care Act 1990 (the 1990 Act).1 At the heart of these reforms was the introduction of a quasi-market for secondary and tertiary health care by means of a split between the purchasers of care and its providers. There are two categories of purchaser: district health authorities (districts) and certain 'fund-holding' general practitioners (fundholders). The remit of the districts is to purchase health care for their resident population. Fundholders are given part of the budget for the district (which is still allocated to it by central government) in which their practice is located. Fundholders use their budgets to purchase certain categories of nonurgent care for the patients registered with them. The providers of health care are now mainly entities which are not directly managed by the districts. Instead, they are 'self-governing trusts' who have a special legal status within the NHS.2 The trusts must now compete with each other to obtain funds from the purchasers. The relationship between purchasers and providers is referred to as a 'contract.'3 The government's reasons for the introduction of the internal market are set out in a White Paper.4 First is the desire to achieve better 'value for money,'5 the term being used in the sense of providing a given quantity and/or quality of care for the least possible cost. This can also be called productive efficiency. Proponents of quasi-markets6 contend that productive efficiency is more likely to be achieved in a situation of competition between providers than in a structure which contains monopoly providers. A second reason given for the introduction of the internal market was that it would stimulate staff and professionals to behave in a more responsive manner in relation to the needs and desires of patients.7 A third reason was that patients should be a given a greater choice of the services available.8 A series of 'key measures' was proposed in 'Working for Patients' to achieve the preceding objectives. The first of these was the decentralisation of decision making and delegation of authority to local level.9

Miscarriages of Justice: A Systems Approach

Abstract: That there have been a number of high profile miscarriages of justice in recent times in Britain is undisputed. The Court of Appeal (Criminal Division) has indicated as such by quashing the convictions of numbers of prisoners who had served very long prison sentences. The media, fuelled by the research of investigative journalists, had been convinced of the innocence of many of these people for some period of time before the Court of Appeal's final judgments. Those interested in reforming criminal justice have based their reform proposals on their own conclusions, bolstered by the final judgments of the Court of Appeal,' that there have been miscarriages of justice and their understanding of the reasons for such miscarriages. However, each of these groups, in accepting that miscarriages of justice have occurred, are not in many respects accepting the same things, but are actually accepting or implying different things. When the Court of Appeal (Criminal Division) quashes a criminal conviction, it does not pronounce on the innocence or guilt of those whose convictions no longer stand.2 Nor does it offer an alternative narrative of events to that which, following the original conviction, had been constructed by the media and nothers to account for the finding of guilt by the jury. When the media and investigative journalists disclose miscarriages of justice, they claim that the persons previously convicted are innocent and they offer alternative narratives of the events that took place, and often suggest who they believe to be guilty. When legal reformers offer miscarriages of justice as justifications for their reform proposals, they tell us very little about the guilt or innocence of those who had served prison sentences, but tell us a lot about those faults in the system that need to be corrected. There may be a minimum conception or starting point of miscarriage of justice which allows these high profile cases to be utilised within disparate discourses; but there is no one conception of miscarriage of justice that consistently operates between the discourses of these different groups. And, even within the distinct groups, within their systems of communication, it is often difficult to formulate one coherent conception of miscarriage of justice. We believe that these different

Libel and Pornography

Abstract: Charleston v News Group Newspapers Ltd l illustrates the unsatisfactory state of our law of defamation. The actual decision seems questionable even in terms of traditional libel principles. In the events that happened, the decision was not legally wrong, but those events should never have happened. The plaintiffs were actors who played the part of a respectable married couple in the popular soap 'Neighbours.' A manufacturer brought out a computer game in which their well-known faces were superimposed on a pornographic picture. It suffices to say that the resulting image conveyed suggestions of sado-masochism and sodomy. This attracted the attention of the News of the World; the results were all that were to be expected. The newspaper published the composite image under a prominent headline. A causal reader might well think that the plaintiffs had voluntarily engaged in pornographic activities. However, those who read the article as a whole would appreciate that the plaintiffs were victims, not instigators; indeed, it discussed the conduct of the computer game makers 'in a tone of selfrighteous indignation.'2 In our country the jury has been, since 1792, the constitutional tribunal for deciding whether a given publication is libellous or not. This rule (Fox's Libel Act) was introduced by Parliament because it did not trust the judges to do the job. It is, of course, well settled all the same that the judge has to decide if the libel is capable of bearing a defamatory meaning. This is a contradiction (and a subversion of the will of Parliament) unless we regard it as no more than a safeguard against perverse verdicts, in which case it is quite proper. It is not a requirement imposing a double test for what is defamatory; the one lay, the other judicial. For my part, I would have expected a jury to have awarded a good round sum; nor would I have regarded such a verdict as perverse. We shall soon see how, in the instant case, nobody's job was done by nobody. The case seems to have been pleaded on the basis that readers, or some of them, would draw the inference that the plaintiffs were willing participants in a pornographic photograph. The defendants secured an interlocutory raling requiring a preliminary issue to be decided by a judge alone; namely, whether the matter complained of taken in its proper context was capable of bearing the defamatory meanings alleged. The judge held that it was not, and the Court of Appeal and House of Lords agreed. It is, of course, absurd to suppose that the millions of readers of the News of the World, some hurried, others attentive, will all take the same meaning out of the same item; nor did the House of Lords so suppose. As Lord Nicholls noted3:

Understanding and Regulating the Corporation

Abstract: We live in a corporate economy. Goods and services are overwhelmingly produced and supplied not by individuals working on their own account, but by corporations, and increasingly by very large corporations. This is hardly an original or challenging observation, but it has obvious significance for those working in a wide range of legal fields. For company lawyers, labour lawyers, consumer lawyers, environmental lawyers, and no doubt many others, the targets of their regulatory strategies will usually be corporations. And in answering the normative and strategic questions all such lawyers must ask What goals should we be seeking to achieve? How best can we achieve those goals? some model of the corporation is necessary. Company law itself at least insofar as it addresses the large corporation has relied heavily upon a model informed by 'managerialism.' Large corporations are frequently controlled not by their owners (the shareholders), but by their senior managers. This is seen as having normative implications for the proper goals of the corporation,l as well as descriptive and strategic implications, in that companies in which managers are in control behave differently and respond differently to regulatory norms.2 More recently, however, an alternative paradigm3 hereafter 'contractarianism' has challenged this established model. Its foundations lie in the economic analysis of firms and of law. Descriptively, it declares the company to be a 'nexus of contracts' between a number of different actors interested in its business managers, shareholders, employees, consumers and so forth. Normatively, it advocates freedom of contract, market regulation and only limited legal intervention to overcome market failure. Contractarians have thus subjected managerialism's conceptual framework, and many of its normative assumptions, to a sustained onslaught. In so doing, they have engendered a stimulating debate, forcing opponents of their approach to rethink, clariify and justiify their positions. Corporate Control and Accountability (hereaifter 'CCA') a collection of 19 essays (plus Introduction) both reflects and contributes to this debate. The subject matter of these essays is, in fact, admirably wide-ranging, pursuing a large

Agitating for Part‐Time Workers' Rights

Abstract: In Spring, negligence again presents itself as the avenue through which judges reform private law. The emphasis throughout was on negligence, although the speeches of Lords Woolf and Slynn demonstrate that contract could have provided a remedy. It is somewhat surprising that the contractual analysis did not dominate the speeches, especially since Scally indicates that the contractual analysis should be preferred in cases involving harm arising from employment.54 Yet only Lord Woolf held that the 'primary source of any liability is contractual rather than tortious,' since the relationship with the defendants arose from the previous engagement;55 the other Law Lords did not address the point. We might also ask what would have happened if the plaintiff had brought the action in defamation. Would their Lordships have found a remedy by reforming the law of defamation? For example, would they have held that qualiE1ed privilege should not be available to employers or, if available, it should be rebuttable by proof of carelessness rather than malice? Certainly, Derbyshire County Council v Times Newspapers56 suggests that the House of Lords is willing to take a fresh look at the rules of defamation where political values are at stake; would it do so where more personal or commercial values are at stake? It seems doubtful57; perhaps the employer's qualified privilege has stood too long in a tort 'beyond the redemption of the courts'58 for the judiciary to re-examine it.59 And perhaps the return of a more liberal view of negligence makes it unnecessary.

Children's Access to Adoption Records - State Discretion or an Enforceable International Right?

Abstract: Although at first sight the issue of children's access to adoption records appears both narrow and arguably clear in international law, it is an issue which raises fundamental questions. It is not that secrecy is inherently wrong, the arguments do not rest upon a moral presumption either way.' The questions which are posed here are, first, whether secrecy is appropriate in relation to adopted children and, second, whether the legal control of secrecy equally serves both adults' and children's interests. Access by children to their birth records whilst they are still children is perceived as opening 'Pandora's Box,' risking traumas between three possible parties: the adopted child and the adoptive and birth parents. Nevertheless, because it is an issue which challenges our notions of equality, setting issues of participation and autonomy against those of protection and welfare, it ought no longer to be avoided. The moral imperative behind much of international human rights law is the treatment of all of humanity as of equal worth. Hence, many international and regional human rights treaties enshrine either general or specific provisions on equality and unjustifiable discrimination. However, although international law takes a substantive approach to equality rather than a formalistic one,2 the concept of equality has been insufficiently developed to counter child discrimination effectively. Had it been otherwise, it would not have been necessary to adopt a global human rights treaty for children because they would already have been sufficiently protected under general equality clauses. Indeed, the misapplication of the equality principle has had negative consequences for children, as their particular needs have not been taken into account. Belatedly, there has been a welcome and increasing focus on the discrimination occurring between adults and children, but discrimination between different groups of children often passes unnoticed. This is because there is an additional element to discrimination concerning children which does not appear to have been considered by human rights fora. Differences may be introduced because they appear at first sight to be necessary for the protection of children, but such are arguably unlawful unless they can be shown to have an objective and reasonable justification.3 Child access to adoption records also has equality implications for adopted children as a class. Older children will remember their names and require

Blasphemy, Cultural Divergence and Legal Relativism

Abstract: The offence of blasphemy was by the 1970s typically dismissed as an archaism existing at the margins of the criminal law, practically obsolete and of little social significance or broader analytical interest, there having been no successful prosecution in Elfty years. In contrast, the debate which began then and still continues now as to whether the offence should be retained, reformed or abolished has assumed major socio-legal importance. The exchanges which characterise this debate raise fundamental issues relating to law, religion and politics, and can be read as a commentary on the relationship between law and culture in Britain at the end of the twentieth century, and as symptomatic of some of the pivotal conflicts which are characteristic of late modern societies. At a point when legal developments are set to excite renewed controversy, this article explores the social and cultural signiElcance of the offence and of the legal strategies which are in question. The initial section examines the involvement of the law of blasphemy in uncertainties surrounding the impact of secularisation and cultural pluralism, which invest it with considerable symbolic consequence. In order to illuminate the nature of the offence, there follows an account of its parameters and a critical analysis of its relationship to laws dealing with the adjacent areas of sedition, obscenity, outrage to public decency and offences against public order. The third section of the article is concerned with the recent revival of the blasphemy law and assesses the paradoxical nature of its effects, in particular the difElculties that have been posed for liberalism as a political philosophy aspiring to steer society through to an era of plurality and co-existence. Finally, the signiE1cance of a law of blasphemy is related to the question of the status of religion in contemporary western societies, the appropriate response of law, and the conflict that exists between the desire to rationalise the offence and the desire to equalise the protection it affords.

A Tortfeasor's Lot is not a Happy One?

Abstract: In recent years there has been considerable emphasis on preventing a plaintiff receiving compensation for the same injury from two different sources when awarding damages in personal injury cases at the expense of the tortfeasor.1 This problem of double recovery is raised in deciding whether a plaintiff should receive damages for the value of caring services rendered to her gratuitously by a third party. It can be argued that if the plaintiff is allowed to recover she receives both the care and the cost of the care, the latter being a benefit to the plaintiff at the expense of the tortfeasor. However, in Donnelly v Joyce2 and Cunningham v Harrison,3 the Court of Appeal accepted that such damages could be recovered. In Hunt v Severs,4 the House of Lords considered whether recovery should be allowed where the voluntary services were provided by the tortfeasor rather than a third party. In rejecting the plaintiff's claim, the House of Lords recategorised the legal basis on which any plaintiff can recover for the value of gratuitously provided services and used this new 'trust' basis to deny recovery on the facts. However, the extent to which the plaintiff would have been overcompensated if recovery had been allowed, whether if such overcompensated existed it was justified and whether the imposition of a trust as a means for compensating voluntary providers of care is workable, receive inadequate treatment.

Sexual Harassment: Moving Away From Discrimination

Abstract: Sexual harassment is a serious and widespread problem.' It may have complex, detrimental and long-lasting effects on the victims. Where the problem occurs in the workplace, business efficiency suffers. This article examines the legal implications of attempts which have been made in the European Union, the United Kingdom, Canada and the United States to respond to widespread complaints of malpractice. Harassment actions in the United Kingdom have been founded on claims of discrimination and largely confined to employment law.2 This article examines the legal foundations for claims which have been made where the plaintiff has complained of sexual harassment. The authors contend that the discrimination foundation for such claims may not be the most appropriate base because sexual harassment, even of a severe nature, does not necessarily involve any disparate treatment of the sexes. Rather, it concerns inappropriate use of sexuality, regardless of the gender of the victim. Both United Kingdom and United States case law show a tendency to move away from the core concepts of discrimination law, raising questions as to whether this is the correct basis for any action. The fundamental concern of discrimination law has been to provide redress where less favourable treatment has been meted out to a person on the grounds of the gender of the victim.3 The authors argue that issues of differential treatment are irrelevant in sexual harassment claims because

Whistleblowers and Job Security

Abstract: There are numerous pieces of legislation which impose duties on employers and are designed to protect both employees and members of the public.' In practice, employees will often be aware of their employer's failure to fulfil statutory obligations. This article considers the legal position of employee whistleblowers2 and concentrates particularly on those who express their concerns to an outside agency. It is argued that even where disclosure of confidential information is clearly in the public interest, employees are vulnerable to harassment and victimisation. It concludes that if workers are to be encouraged to play their full part as citizens, new statutory safeguards must be introduced as a matter of urgency.3

Intention in the Criminal Law—A Rejoinder

Abstract: Nicola Lacey's article in this Journal, 'A Clear Concept of Intention: Elusive or Illusory?'l tackles a breathtaking array of themes that are of central concern to criminal law scholars. We are treated to a sophisticated analysis of a House of Lords decision on the meaning of intention in the law of murder,2 an evaluation of the contributions of descriptive and reductive scepticism to criminal law scholarship,3 a critical assault on conceptual and 'ordinary language' analysis of criminal law concepts,4 and some thoughts on the implications of the argument for the study of criminal law issues (not just 'criminal law') in the curriculum.S It would be impossible to do justice to all of her arguments in a single rejoinder. So, I want to concentrate on a narrow, but important issue. I want to show that Lacey's assumptions about the role, if not the concept, of intention in the criminal law rest on a mistake. This is significant because, unless one understands the different roles that intention plays in the criminal law, one will not fully understand why the meaning of intention the conception of the concept-may differ according to the role it is playing in a particular context. Then, by reinterpreting Moloney6 in the light of the role intention is playing in that context, I hope to cast doubt on her claim to have shown, through an analysis of intention in the criminal law, that one must have 'a criminal law enterprise which dispenses with ... the boundaries between criminal law and criminal justice, and which addresses criminal justice issues explicitly within a particular social and political context.'7

The legal services Ombudsman - form versus function

Abstract: The introduction in 1991 of an ombudsman scheme to cover the legal profession was an important constitutional development, the significance of which goes beyond merely one more addition to the cast list of ombudsmen in this country. It is true that the Legal Services Ombudsman joined a fast growing number of ombudsmen established in the last decade, particularly in the private sector. However, three factors mark out the Legal Services Ombudsman for particular attention, both on constitutional and other grounds. First, under the accepted taxonomy of Ombudsmen into public/private, or perhaps into classical/nonclassical,1 the Legal Services Ombudsman seems to stand alone in a hybrid category, embracing both public and private spheres. He monitors the selfregulatory complaints mechanisms of the legal professions which operate mainly in the private sector, yet is himself a state-funded public 'body,'2 accountable through the Lord Chancellor to Parliament. Second, the office appears to represent a departure from the accepted role of Ombudsman.3 Traditionally, an Ombudsman is seen principally as a citizen's defender, whether against the state or other powerful groups, as a mechanism for settling grievances or as an alternative dispute resolution mechanism.4 A further, but secondary, role is that of raiser of standards or adviser on good practice. Despite his title of 'ombudsman,' the Legal Services Ombudsman is better seen as part of the regulatory framework of the legal profession, grafted on to the selfregulatory mechanisms rather than as principally a mechanism for the settlement of grievances for the clients of lawyers. It is in this contradiction between form and function that some of the problems may arise. Third, and of particular importance, the office of Legal Services Ombudsman has a constitutional significance which is not adequately acknowledged. The institution and operation of a Legal Services Ombudsman raise important concerns

The Social Security (Incapacity for Work) Act 1994

Abstract: The Social Security (Incapacity for Work) Act 19941 is the most radical piece of social security legislation since the Social Security Act 1986 The Act abolishes sickness and invalidity beneElts and replaces them with a new and less generous beneElt, incapacity beneElt This article starts by outlining the pre-April 1995 position before considering the background to the new beneElt and examining its structure and scope The conclusion seeks to put these changes in the context of other recent and impending developments in social security provision

Bringing Cinderella to the Ball: Teaching Criminal Law in Context

Abstract: Alan Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law, London: Weidenfeld & Nicolson, 1993, xx + 279 pp, pb £16.95.

The New Sunday: Reregulating Sunday Trading

Abstract: One of the more contentious issues which Parliament has sought to resolve in recent years is the question of Sunday trading. Should shops be allowed to open on Sundays and, if so, what sort of shops and for how long or should Sunday trading be regulated at all? These questions encapsulate a range of interests, some of which conflict. Thus, any Bill would be obliged to acknowledge the multi-faceted nature of the debate and successfully balance the interests of consumers, shop workers, retailers (large and small), residents close to shopping areas and those that believe Sunday has a special quality which should be preserved through restricted opening hours on Sundays. In short, there is a combination of economic, social and moral issues that form a backdrop to the ideological debate that often surrounds questions of regulation. A government attempt to roll back the frontiers of the state in relation to Sunday trading failed in the mid-1980s.' This defeat, coupled with a long litigation campaign, resulted in the Sunday Trading Act 1994.2 In this paper, I focus on the content and scope of the new statute after taking a brief look at the history surrounding it, notably the interplay of social changes and litigation strategies that led to reform. The paper will examine the way the statute has balanced the different interests of those affected by Sunday trading and concludes with an analysis of how reform is achieved on contentious issues. More broadly, I will examine why this issue proved so contentious and what this tells us about the way multi-faceted agendas can be disguised behind relatively commonplace questions such as the opening hours of shops on Sundays.

Allocating Health Care Resources in an Imperfect World

Abstract: Despite the publicity generated by R v Cambridge District Health Authority, ex parte B,1 it could be argued that the decision, that courts have little or no role to play in the allocation of health resources, represents merely the orthodox public law position. Nevertheless, the litigation and the distressing circumstances which lie behind it do encapsulate important issues and dilemmas within our society and it is the purpose of this note to explore some of these. In particular, it will be argued that to characterise this case as representing a conflict of interest between medicine and law, as though law was trespassing on medical or health administration, is mistaken and demonstrates a misunderstanding of the role of law in our society.2

Assisted suicide in the Netherlands: Postscript to Chabot.

Abstract: The decision of the Dutch Supreme Court in the Chabot case involving the criminal prosecution of a psychiatrist who had acceded to the request of a psychically traumatised but not otherwise 'sick' woman (Mrs B) for assistance with suicide was reported in an earlier issue of MLR (58:2, March 1995, pp 232-248). The Court held that the defence of necessity, upon which the legalisation of euthanasia and assistance with suicide in the Netherlands has been based, could in principle be invoked in such a case but was not available to Chabot because of his failure to meet an essential procedural requirement (personal examination by a second doctor). The prosecution had requested the responsible Medical Inspector, who was contemplating a medical disciplinary proceeding, not to go ahead with it while the criminal case was pending. When, with the decision of the Supreme Court on 21 June 1994, the criminal case was over, the disciplinary proceedings against Chabot got underway. The regional Medical Disciplinary Tribunal rendered a decision on 6 February 1995.l It concluded that what Chabot had done 'undermined conf1dence in the medical profession' (the basic disciplinary norm).2 Chabot received a relatively severe sanction: 'reprimand.' On 19 April 1995, Chabot announced that he had had enough of legal proceedings and would not appeal this decision, which means that the case is now f1nally closed. The purpose of this brief postscript to the earlier report of the Supreme Court's decision in the criminal case is to provide some basic information about and comments on the subsequent decision of the Medical Disciplinary Tribunal. The facts in the case are set forth in the report of the Supreme Court's decision.3 Chabot wanted vindication on the merits from a tribunal of his peers (of the f1ve members of a medical disciplinary tribunal, all but the president a lawyer are doctors), so he instructed his lawyer not to raise the difficult issue of double jeopardy. The Tribunal was therefore not forced to confront the question whether, in the circumstances of this case in which no issue was involved in the second proceeding that was not, or could not have been, raised in the f1rst proceeding, it is not fundamentally unfair that the state should have two opportunities to make its case. Nor did the Tribunal address itself to the relationship between the substantive and procedural norms for euthanasia and assistance with suicide as worked out by

Sobering Up? The Law Commission on Criminal Intoxication

Abstract: The Law Commission has now published its Elnal report on intoxication and criminal liability. ' Its new proposals are a vast improvement on those originally proposed in the initial Consultation Paper.2 In the Consultation Paper, the Law Commission found itself unable, as a matter of principle, to make sense of the distinction between crimes of basic and of speciElc intent that has underpinned the common law governing voluntary intoxication (more or less ambiguously) for one hundred years or longer. At common law, intoxication is evidence that can be employed to deny mens rea in crimes of specific intent. Such evidence is, though, inadmissible for this purpose where crimes of basic intent are in issue, even where the mens rea in question involves an element of subjective awareness.3 I shall pursue this issue below. So, wedded to an unyielding subjectivism, the Commission tentatively proposed to make redundant the distinction between crimes of basic and of specific intent by allowing evidence of intoxication to be employed wherever this tended to show that the accused lacked the requisite (subjective element oi) mens rea. Well aware, however, that such a boldly subjectivist proposal would meet with fierce opposition, not least from the general public, the Commission proposed that a separate offence of 'criminal intoxication' should be created. One would be convicted of this offence when, having become 'deliberately intoxicated to a substantial extent,' one caused certain listed kinds of harms whether one was acting with mens rea or not, and even if one was acting in a state of automatism.4 This ill-conceived proposal was, to use the Commission's own words (1.26), 'rejected outright with cogent and persuasive reasons by almost all influential groups working in the criminal justice system. I shall not waste space by adding my own criticisms to the proposal here. So with what does the Commission's final Report replace its own initial proposals? Finding that juries do not experience much difE1culty with the present law, and that a majority of those groups working in the criminal justice system thought the law worked fairly and without undue difficulties (1.28), the Commission now proposes to enact the present law, with certain important amendments and clarifications. In particular, the Commission rightly pays attention to the relatively unexplored problem of what 'voluntary' intoxication the state (of mind?) that gives rise to all the difficulties really means (1.34; 8.35). This issue will be

Judicial Education on Equality

Abstract: This article argues that judicial education, while new to the common law tradition, is becoming integral to the standing of the judiciary and offers an appropriate means of providing accountability without violating independence. The 1990s mark a period of intense change for judiciaries operating in many western countries. This change is heralded by widespread complaints of 'gender bias' and cultural insensitivity. These complaints in Britain and Australia have mirrored those in the United States and Canada a decade earlier and have led to a number of