Showing papers in "Modern Law Review in 2004"
TL;DR: In this article, the authors argue that US studies of "legal consciousness" have much to offer UK socio-legal studies and draw on homelessness applicant interview data to illustrate the importance of the value of dignity; how they make sense of their decisions; and the spaces in which legal consciousness may be produced.
Abstract: This article argues that US studies of ‘legal consciousness’ have much to offer UK socio-legal studies. It is, perhaps, surprising that so little attention has been paid to this set of understandings. I seek to rectify that imbalance in the transatlantic relationship by outlining legal consciousness and its critiques. I then draw on homelessness applicant interview data to discuss their ‘legal consciousness’, illustrating the importance of the value of dignity; how they make sense of their decisions; and the spaces in which legal consciousness may be produced. The study is a limited examination, but it enables us to question the assertion that welfare applicants ‘know the law’ and (ab-)use it.
113 citations
TL;DR: In the present era of globalisation, control over the movement of people has become the last bastion of sovereignty as mentioned in this paper, which is important both to theoretical accounts of globalization and to policy decisions by governments.
Abstract: This article argues that in the present era of globalisation, control over the movement of people has become the last bastion of sovereignty. This is important both to theoretical accounts of globalisation and to policy decisions by governments. Nation states threatened with loss of control in other realms are implementing a variety of ‘crackdown’ measures in questions of immigration. Issues of refugee law, illegal migration and skilled migration each challenge sovereignty in specific ways. While international human rights standards have made few inroads in questions of migration, recent decisions in England and Australia suggest that the rule of law may be emerging as a counter to traditional executive free reign in matters of migration law.
100 citations
TL;DR: There is now some evidence of a potential drift towards 'punitive' approaches to regulation in which greater emphasis is placed on criminal sanctions as mentioned in this paper, and this new enthusiasm for punishment can be seen in government policy, legislation and some regulators' public stances.
Abstract: There is now some evidence of a potential drift towards 'punitive' approaches to regulation in which greater emphasis is placed on criminal sanctions. This new enthusiasm for punishment can be seen in government policy, legislation and some regulators' public stances. There is evidence, however, that companies (even top ones) deal with punitive regulatory risks in a confused manner and that even when they do act rationally, this may not lead to compliance. One response to punitive approaches and their limitations is to move towards greater reliance on stimulating the self-regulatory capacities of corporations. Such stimulation, however, has to be carried out with an awareness of the dangers of self-regulation – notably that it may lead to controls that lack legitimacy, prove unfair and are exclusive and inefficient.
51 citations
TL;DR: In this article, the authors argue that alongside this traditional image of the child, there is a different image emerging, that of the autonomous, responsible child, which is included in the project of'remoralising' the family by building the 'good' post-separation family.
Abstract: The image of the child as the victim of separation or divorce is well-established in legal, socio-legal and popular discourse. However, the authors argue, alongside this traditional image of the child, there is a different image of the child emerging, that of the autonomous, responsible child. This is apparent in academic discourse, policy documents and legal pronouncements. This child is included in the project of ‘remoralising’ the family by building the ‘good’ post-separation family. The ‘good’ child of separation or divorce is responsible for safeguarding his or her own welfare and is expected to make those choices that are assumed to best protect his or her best interests. In order to ensure that the child makes the ‘right’ decisions, he or she, like the adults concerned, is the target of education, information and therapeutic intervention. There is a blending of paradigms in which the ideal child is both an autonomous social actor and a vulnerable object of concern.
38 citations
TL;DR: A review of the not-for-profit sector was carried out by the UK Government in 2002, with the publication of a consultation paper Private Action, Public Benefit (hereafter PAPB) as discussed by the authors.
Abstract: The governance of organisations has enjoyed sustained attention over recent years. In the UK, this has been fuelled by the promulgation of a number of voluntary codes of practice designed to improve corporate accountability,1 and by the Government's far-reaching review of company law.2 Perhaps unsurprisingly, the spotlight has tended to fall most on commercial bodies, typically addressed under the rubric of 'corporate governance', but the'not-for-profit' sector has not escaped attention, made more urgent by the expansion in the role of, and the expectations on, that sector. So, increased demands have been put upon not-for-profits (including charities) to assist in the delivery of state services, the regeneration of communities, the provision of 'public goods', and the fostering of entrepreneurial spirit.3 It is against the background of these developments that the Government launched, in September 2002, its review of the not-for-profit sector, with the publication of its consultation paper Private Action, Public Benefit (hereafter PAPB).4 Taking as its theme the development of a modern legal framework for not-forprofits, PAPB had a wide-ranging remit5 and delivered a large and diverse range of recommendations.
38 citations
TL;DR: The use of enforceable undertakings by the Australian Competition and Consumer Commission (ACCC) and other Australian regulators to formalise decisions to forego enforcement litigation on the basis that offenders will correct their misconduct and comply in the future.
Abstract: Enforceable undertakings are now used extensively by both the Australian Competition and Consumer Commission (ACCC) and other Australian regulators to formalise decisions to forego enforcement litigation on the basis that offenders will correct their misconduct and comply in the future. A ‘fairness’ critique warns that regulators might exert undue pressure in negotiating enforceable undertakings and that the terms agreed might be inappropriately broad and not legally authorised. A ‘bias’ critique argues that enforceable undertakings favour business above the public interest in taking tough court action against business offences. The article draws on empirical research into the ACCC's use of enforceable undertakings to show how they are used in practice, and argues that, if appropriately implemented, enforceable undertakings can be a valuable ‘restorative justice’ alternative to traditional regulatory enforcement action, simultaneously addressing both fairness and bias concerns.
35 citations
TL;DR: The authors assesses the legal regulation of marriage and cohabitation in Britain and outlines a growing need and desire for the currently confused law to be amended despite what has been termed "the normal chaos of family law".
Abstract: This article assesses the legal regulation of marriage and cohabitation in Britain and outlines a growing need and desire for the currently confused law to be amended despite what has been termed ‘the normal chaos of family law’. It adds to the topical debate about ‘couple regulation’ and argues that law should protect the function rather than the form of relationships. This argument is supported by recent Nuffield Foundation funded research, which draws on a major attitudinal survey of over 3000 respondents' views about marriage, cohabitation and the law and a number of in-depth interviews with current and former cohabitants. This research supports the view that cohabitation is now an accepted parenting and partnering structure across Britain, and that this ought to be reflected in a ‘reflexive’ approach to legal regulation in this sphere.
35 citations
TL;DR: In this paper, it is argued that the courts have not developed the appropriate concepts and principles properly to address these questions and that interference with the presumption of innocence may be justified on the grounds of proportionality.
Abstract: There has recently been a proliferation of case law dealing with potential inroads into the presumption of innocence in the criminal law of England and Wales, in the light of article 6(2) of the European Convention on Human Rights. This article is concerned with the nature of the presumption of innocence. It considers two central issues. The first is how the courts should address the question of when the presumption of innocence is interfered with. The second is the extent to which interference with the presumption of innocence may be justified on the grounds of proportionality. It is argued that the courts have not developed the appropriate concepts and principles properly to address these questions.
33 citations
24 citations
TL;DR: In this paper, the concepts of disproportionality and gross disproportionality in sentencing are explored and the possible meaning and application of this are discussed by reference to the development of related constitutional jurisprudence in other jurisdictions.
Abstract: The article explores the concepts of disproportionality and gross disproportionality in sentencing. Several constitutions or human rights documents prohibit grossly disproportionate sentences, either expressly or impliedly. The draft constitution of the European Union has a Charter of Fundamental Rights that includes the right not to be subjected to a disproportionate sentence. The possible meaning and application of this are discussed by reference to the development of related constitutional jurisprudence in other jurisdictions.
22 citations
TL;DR: The European Convention on Human Rights and the EC Race Directive are incapable of redressing collective racial or ethnic disadvantage because they do not provide for the enforcement of positive social, economic and cultural obligations as mentioned in this paper.
Abstract: The universality of human rights is undermined by the principle of territorial supremacy. This allows member states of the EU to discriminate against those who are not citizens of the Union. Moreover, the European Convention on Human Rights and the EC Race Directive are incapable of redressing collective racial or ethnic disadvantage because they do not provide for the enforcement of positive social, economic and cultural obligations. These limitations are assessed in the light of current political and legal developments, using as the main illustration the case of the European Roma. An analysis is provided of obligations to respect, to protect and to fulfil social rights, which could be used when challenging the actions of public authorities and securing access for individuals to public facilities and services. An inclusionary approach would emphasise that equality is central to human rights, and that ‘outsiders’ such as migrant workers and asylum-seekers have human rights.
TL;DR: The judgment in Pfizer indicates that the judiciary remains highly reluctant to undertake any role in structuring the process of decision-making on the allocation of limited health care resources, and the implications of such continued judicial abstention are explored.
Abstract: In R (on the application of Pfizer Limited) v Secretary of State for Health,' the Court of Appeal was obliged to consider the legality of the Government's continued restriction on the availability of the impotence drug Viagra, arguably the most high-profile instance of rationing of a particular treatment ever witnessed in the history of the National Health Service (NHS). The case therefore provides a convenient opportunity to reassess whether any useful contribution can be made by the courts in an area of public policy which is of growing significance to governments in the UK and worldwide.2 Although there is academic endorsement in both the fields of public law3 and health policy4 for the closer involvement of courts in structuring the process of decision-making on the allocation of limited health care resources, the judgment in Pfizer indicates that the judiciary remains highly reluctant to undertake any such role. The purpose of this article is to explore the implications of such continued judicial abstention in the light of notable recent changes in the manner in which allocative decisions are taken in the NHS.
TL;DR: In this article, the authors consider the nature of claims against dishonest assistants and the various money remedies those claims may evoke, and examine the two different types of compensation that may be awarded against defaulting trustees.
Abstract: The paper considers the nature of claims against dishonest assistants and the various money remedies those claims may evoke. Dishonest assistance is a form of civil secondary liability whereby the assistant is held jointly and severally liable along with the trustee whose misconduct he assisted. This is the sense in which dishonest assistants are said to be accountable as constructive trustees. In order to understand remedies available against dishonest assistants it is accordingly necessary to understand the corresponding remedies against defaulting trustees and what it means for them to be accountable. The paper examines the two different types of compensation that may be awarded against defaulting trustees—substitutive and reparative—and observes that the same two types of compensation may be given against dishonest assistants in appropriate cases. It also explores the circumstances in which trustees and dishonest assistants should be accountable for profits and whether they should ever be liable to pay exemplary damages. A strict application of the theory of civil secondary liability produces controversial results in connection with these latter remedies.
TL;DR: Dr Fishel advised the Hashmis that a procedure pioneered at the Reproductive Genetics Institute in Chicago might assist them, but it would need to be specifically authorised by the Human Fertilisation and Embryology Authority.
Abstract: BACKGROUND The plight of the Hashmi family has attracted widespread interest in the media. Briefly, one of the Hashmis' children, Zain, was born with the blood disorder, beta thalassaemia major. To rectify this disorder, Zain needs a stem cell transplantation, using the cord blood or bone marrow of a donor who is free of the thalassaemia gene as well as being a tissue-match with Zain. None of Zain's three elder siblings being a tissue-match, the Hashmis resolved to have another child (an intended saviour sibling). The first child conceived by Mrs Hashmi was aborted because prenatal tests showed that it had the thalassaemia gene; and the second, although born healthy, was not a tissue-match for Zain. In desperation, the Hashmis sought advice from Dr Simon Fishel, the Managing and Scientific Director of Centres for Assisted Reproduction Limited (CARE), the largest single provider of IVF services in the United Kingdom. Dr Fishel advised the Hashmis that a procedure pioneered at the Reproductive Genetics Institute in Chicago might assist them. This procedure involved removing a single cell from the early embryo by a biopsy; using pre-implantation genetic diagnosis (PGD) to check that the embryo was free of the thalassaemia gene; using a similar process, HLA typing, to confirm a tissue-match; and then implanting an embryo that satisfied both requirements. However, Dr Fishel's view was that, before such a procedure could be lawfully undertaken in the UK, it would need to be specifically authorised by the Human Fertilisation and Embryology Authority (the Authority). For, although there was nothing new about PGD being carried out as part of IVF treatment licensed by the Authority,1
TL;DR: It is made clear that restricting patients to receiving medical services from their domestic health systems is often contrary to EC Treaty rules on the free movement of services, particularly where the treatment is not in-patient.
Abstract: In Muller-Faure the Court of Justice has made clear that restricting patients to receiving medical services from their domestic health systems is often contrary to EC Treaty rules on the free movement of services, particularly where the treatment is not in-patient. The patient should generally be able to go abroad for treatment at the expense of their national health authority. This has structural and financial repercussions for health care systems in several Member States, including the United Kingdom, whose systems are premised upon captive patients. It also has broader implications for welfare harmonisation and provision in the European Union. Exceptions are possible, where the implications for the national health system would be very serious, but Muller-Faure indicates that the Court will not allow national courts or authorities to rely on these too freely.
TL;DR: Part 10 of the Enterprise Act 2002 heralds a new era of corporate insolvency law for the United Kingdom as mentioned in this paper, which implements a number of modifications to that regime, intended to attain the goals of a superior corporate rescue environment, a better return for creditors and a generally fairer system of insolventcy distribution.
Abstract: Part 10 of the Enterprise Act 2002 heralds a new era of corporate insolvency law for the United Kingdom. Driven by an assessment that the current regime is not adequately rescue-orientated and, further, inequitable, the Act implements a number of modifications to that regime. These are intended to attain the goals of a superior corporate rescue environment, a better return for creditors and a generally fairer system of insolvency distribution. The timing of these developments is of note, as the latest statistics from the Insolvency Service show an increase in the number of insolvency appointments for England and Wales during 2001,1 although the reforms have been inspired by a series of consultations and reports dating back to 1999.2 Corporate insolvency law was last comprehensively overhauled by the Insolvency Act 1986, which (incompletely) implemented the recommendations of the Cork Committee.3 A perusal of the Cork Report demonstrates that the ideals of equity, collectivity and corporate rescue are by no means recently espoused: indeed, they were cited as characteristics of a "good modern insolvency law" by the Committee,4 and were major objectives of the reforming process. The Enterprise Act pioneers no new dogma, therefore, but rather seeks to apply an existing ideology more effectively. As is apparent from the White Paper preceding the Act, its main objectives are to promote, in no particular order, corporate rescue, collectivity, the maximisation of realisations from the corporate estate and overall fairness as between creditors.5
TL;DR: In this paper, the authors argue that only through faithful adherence to principles of individual responsibility and corrective justice, inherent as these are within the structure of tort law, can we hope to preserve coherence in the law of tort.
Abstract: Some commentators have doubted whether, as is generally believed, liability insurance has had a significant expansionary effect on the law of tort. This article contends that the common assumption is, indeed, correct, and the crucial influence of insurance is clearly seen in the recent cases of Vowles v Evans and Gwilliam v West Herts NHS Trust. Once this has been acknowledged, the consequent radical incoherence in the basis of tort law needs to be confronted. The argument here is that only through faithful adherence to principles of individual responsibility and corrective justice, inherent as these are within the structure of tort law, can we hope to preserve coherence in the law of tort.
TL;DR: The House of Lords has recently reiterated its preference for a purely subjective doctrine of mens rea by overruling the Caldwell test of recklessness as mentioned in this paper, and it is argued that while the subjective basis of mmens rea is essential to ensure that it is the accused's culpability that is being judged, courts must be prepared to accept that there is a residual objective element that is part of men rea and that which determines whether the accused is morally blameworthy.
Abstract: The House of Lords has recently reiterated its preference for a purely subjective doctrine of mens rea by overruling the Caldwell test of recklessness. It is argued that while the subjective basis of mens rea is essential to ensure that it is the accused's culpability that is being judged, courts must be prepared to accept that there is a residual objective element that is part of mens rea and it is that which determines whether the accused is morally blameworthy. Unless this is formally accepted, mens rea will never be restored to its proper normative role; that of determining whether the ‘mens was rea’.1
TL;DR: In this article, the authors argue that the European Union lacks a clear strategy to promote the role of services of general economic interest in the new economy, and that the EU could be in breach of its fundamental duty to respect the roles of such services in competitive markets in Europe.
Abstract: Services of general economic interest' play an important role in the lives of the citizens of Europe. Increasingly such services have come under attack from the use of the competition and internal market law provisions of the EC Treaty, revealing that the European Union lacks a clear strategy to promote the role of such services in the new economy. Article 86(2) EC is one provision which allows for the mediation between traditional State duties towards citizens and the demands of competitive markets. Additionally, Article 16 EC recognises that such services have a role to play in the future constitutional shape of Europe and this is enhanced by the recognition of access to services of general economic interest as one of the fundamental rights of the EU in Article 36 of the Charter of Fundamental Rights of the Union.2 While of constitutional importance, neither provision provides a legal base to develop the role of public services in Europe. The White Paper on services of general interest claims that such services "were also the subject of intense debate within the Convention on the future of Europe"3 but the issue of competence in the area of services of general economic interest was not seen as a priority by the Convention on the Future of Europe. The Working Group on Social Europe could not agree on whether Article 16 EC should be amended to provide a legal base for EU level legislation on services of general economic interest4 and the resulting amendment to Article 16 in the draft Treaty establishing a Constitution for Europe, Article 111-6, emphasised that services of general interest were subject to European law but did not provide the legal means for the enactment of such laws, opening up the possibility that the EU could be in breach of its fundamental duty to respect the role of such services in competitive markets in Europe. The EC Commission has used a soft law discourse to promote a more clearly defined working relationship between the aims of services of general economic interest and the operation of the internal market in order to secure a clearer under-
TL;DR: In this article, the authors trace the history of legislative and judicial attempts to circumscribe the boundaries around this object, noting that two approaches have emerged and now co-exist: a physicalist approach which treats a film as coextensive with its recording on some medium; and a formalist approach that treats a movie as an expressive form exceeding this physical manifestation, and conclude that a modified version of the available Marxist explanations of film copyright reveals the latter's understandings of film to be closely articulated with the purposes and values of the mainstream film industry.
Abstract: This article focuses on the manner in which the law of copyright in the UK has made sense of a particular cultural artifact – film – in the process of figuring it as an object in which property rights can subsist. It traces the history of legislative and judicial attempts to circumscribe the boundaries around this object, noting that two approaches have emerged and now co-exist: a 'physicalist' approach which treats a film as co-extensive with its recording on some medium; and a 'formalist' approach which treats a film as an expressive form exceeding this physical manifestation. It explains why each approach is reductive and impoverished when considered in relation to how films are figured as aesthetic objects; and concludes that a modified version of the available Marxist explanations of film copyright reveals the latter's understandings of film to be closely articulated with the purposes and values of the mainstream film industry. More generally, it suggests that a reappraisal of Marxist theory may be timely at this juncture, not least because it draws attention to law's role in exemplifying the entwinement of culture and economy at a number of levels.
TL;DR: This paper argued that the principle that the child's welfare is paramount must be abandoned in its present form, as must the presumptive priority accorded to Article 10 where that principle is not found to apply.
Abstract: Under the Human Rights Act so far there has been until very recently little judicial or even academic recognition of the difference between resolving clashes of Convention rights and addressing conflicts between utilitarian concerns and such rights. This article has chosen to illustrate that failure of recognition and to consider methods of resolving the conflict between rights, by concentrating on one particular clash of rights – that between media free speech under Article 10 and the privacy of children under Article 8. It argues for presumptive equality for the two rights and for conducting a 'parallel analysis' of their application to the circumstances of a particular case. It contends that therefore the principle that the child's welfare is paramount must be abandoned in its present form, as must the presumptive priority accorded to Article 10 where that principle is not found to apply.
TL;DR: A-G v Blake (Jonathan Cape Ltd Third Party) as discussed by the authors was the first case to make clear that the "temptation to do justice" by an award of restitutionary damages is inconsistent with respect for the parties' intentions, and that if they take the restitutionary attitude, courts will have little trouble finding the liability which allows them to surrender to this temptation, notwithstanding that doing so involves the extinguishing of contract.
Abstract: compensatory principles of quantification of damages, and what we must now regard as 'restitutionary damages'3 were awarded. As we shall see, Lane by no means clarifies the jurisprudence of these damages. It is nevertheless an important case because it explicitly abandons the 'great moderation' in quantification displayed in Wrotham Park in order to give an unprecedentedly large award. What is more, at least there was a covenant in Wrotham Park, but in Lane the existence of a covenant was in serious dispute, and that leave to appeal the finding of liability was refused presents, with respect, a problem, not a solution. For what Lane is but the latest case to make clear is that the 'temptation to do justice'4 by an award of restitutionary damages which has received such impetus from A-G v Blake (Jonathan Cape Ltd Third Party)5 is inconsistent with respect for the parties' intentions. However, if they take the restitutionary attitude, courts will have little trouble finding the liability which allows them surrender to this temptation, notwithstanding that doing so involves the extinguishing of contract.
TL;DR: The authors examines the main features of the cabinet system as it emerged during the twentieth century, and assesses the main changes that have occurred over successive administrations since the late 1970s, and concludes that even if cabinet government seemed to return in 1990 and 2003, it was without the cabinet systems that had underpinned and made it effective in the past.
Abstract: This paper examines the main features of the cabinet system as it had emerged during the twentieth century, and which Jennings did so much to crystallize in his pioneering study on Cabinet Government. It then assesses the main changes that have occurred over successive administrations since the late 1970s, and concludes that even if cabinet government seemed to return in 1990 and 2003, it was without the cabinet system that had underpinned and made it effective in the past.
TL;DR: Substantial reforms to British anti-discrimination law were undertaken during 2003, pursuing a number of different directions as mentioned in this paper, including new statutory regulations in order to forbid discrimination on grounds of religion or belief and sexual orientation.
Abstract: Substantial reforms to British anti-discrimination law were undertaken during 2003, pursuing a number of different directions. First, the government issued new statutory regulations in order to forbid discrimination on grounds of religion or belief,' and sexual orientation.2 Secondly, the government simultaneously amended the main primary legislation governing discrimination on grounds of sex (including equal pay),3 race4 and disability.5 In relation to race and disability, the changes were significant and designed to comply with the standards set in the European Union's Racial Equality6 and Framework Employment7 Directives. Finally, the government opened consultations on the option of merging the existing equality Commissions, as well as the contents of future legislation on age discrimination.9 If this barrage of reforms was not sufficient to make discrimination lawyers dizzy, the House of Lords delivered a number of long-awaited judgments addressing key concepts within the existing primary legislation. This note provides an overview of the principal developments emerging from the recent law reforms, although clearly each of these changes warrants further detailed examination elsewhere. The first part examines the grounds of discrimination, whilst the second part will analyse the new definition of discrimination. The final section will consider further the arrangements for enforcement of the legislation. Before embarking on this discussion, the following section contextualises the current reform process.
TL;DR: The Enterprise Act 2002 as discussed by the authors represents a major change in competition law and policy within the United Kingdom that the government claims will have important positive effects on the working of the economy, and the changes made by this Act also resonate with other themes; in particular, the Act can be seen as a further development of the "regulatory state", or new public management through its removal of power from politicians and towards independent agencies.
Abstract: The Enterprise Act 2002 represents a major change in competition law and policy within the United Kingdom that the government claims will have important positive effects on the working of the economy. Insofar as a belief in markets and competition has become a new consensus as regards the governance of the nation, then an effective competition policy has a central role in attempting to ensure the proper functioning of markets. The changes made by this Act also resonate with other themes; in particular, the Act can be seen as a further development of the "regulatory state", or new public management, through its removal of power from politicians and towards independent agencies.' In addition, the Act neatly encapsulates the United Kingdom's ambiguous relationship with Europe. On the one hand, the institutional structure that has been created bears signs of the influence of Article 6 ECHR. On the other hand, unlike the Competition Act 1998, the Enterprise Act does not adopt a European Community model; indeed, it selfconsciously rejects the EC approach to merger control in a fundamental aspect. Finally, there is the question of the relationship between domestic competition policy and European Community competition policy. The Act comes into force at a time when EC competition policy will change dramatically from May 2004, through a decentralized system and is also facing major challenges in relation to the system of merger control.2
TL;DR: The authors examines some of the major changes incorporated by the Nationality, immigration and asylum Act 2002, with special reference to asylum, and considers the extent to which the new legislation seeks to criminalize asylum seekers and to act as a deterrence.
Abstract: This article examines some of the major changes incorporated by the Nationality, Immigration and Asylum Act 2002, with special reference to asylum. It considers the extent to which the new legislation seeks to criminalize asylum seekers and to act as a deterrence. It focuses on three key issues of the day - the support of asylum seekers, the regulation of asylum seekers, and appeals.
TL;DR: A preferable course of action in Rv G would have been for the House of Lords to have endorsed an overt normative concept of recklessness by refining Glanville Williams' proposed modification of Caldwell along the lines suggested here.
Abstract: broader. Inadvertence may qualify as a culpable mental state in circumstances when a person ought to have adverted. Treating as acting with an absent mental state a person who has acted intentionally but without adverting to a risk when he or she should have is like treating the failure to apply brakes while driving a motor vehicle as a pure omission rather than a dangerous act of driving. In a civil society there should be certain minimum duties of citizenship and every individual should have a responsibility to advert to relevant risks when actively engaging in certain conduct. Failure to live up to that can fairly be labelled culpable. This is not an objective test in the sense of ignoring the accused and asking what the reasonable person would have foreseen. The focus remains on the accused and the question is simply whether his or her mind should have been attuned to the risk. The two children in Rv G were not blameworthy because it was not reasonable to expect an eleven or twelve year old to advert to the risk that materialised. Had they instead been two drunks, it is unlikely that Rv G would have overruled Caldwell. For now, Caldwell is dead, although it lingers on as a ghost of Reid.58 A preferable course of action in Rv G would have been for the House of Lords to have endorsed an overt normative concept of recklessness by refining Glanville Williams' (an avowed subjectivist) proposed modification of Caldwell along the lines suggested here. This would allow courts to evaluate the blameworthiness of the accused's mental state according to prevailing ethical standards and distinguish between individuals who act out of 'stupidity or lack of imagination', and those who act 'outside the bounds of what humane and decent people regard as tolerable'.
TL;DR: In the case of Lambeth LBC, the Court of Appeal has now determined that Lambeth's scheme is unlawful because it did not give a'reasonable preference' to those households required by legislation.
Abstract: In the housing Green Paper, published in 2000, it was suggested that many of the ills of social housing could be alleviated by changing the way it is allocated from a system based upon a bureaucratic assessment of housing need to one which respects and prioritises customer choice.' It was suggested that the government wanted local authorities 'to see themselves more as providers of a lettings service which is responsive to the needs and wishes of individuals, rather than purely as housing "allocators"'.2 In 2001, the government funded a pilot programme of 27 schemes implementing choice-based lettings.3 The Government has announced that, by 2005, it expects 25 per cent of local authorities to let properties on a choice basis, to increase to all local authorities by 2010, although it is not prescriptive as to how that should be done and further guidance awaits the results of the evaluation of the pilot programme. Lambeth LBC was not one of the pilots funded under the Government programme, but, perhaps sensing the way the wind was blowing, elected to develop its own brand of choice based letting scheme. The Court of Appeal has now determined that Lambeth's scheme is unlawful because it did not give a 'reasonable preference' to those households required by legislation.4 Thejudgment poses questions regarding the legality both of the models of choice based lettings developed as part of the pilot programme and of schemes developed elsewhere. This doubt is not materially affected by the implementation of the Homelessness Act 2002. Thus, despite considerable financial resources ploughed into the pilots and other local authority housing capital resources,5 a discursive and ideological