As a result of previous appeals to the Privy Council from death row, many Caribbean States are in a difficult position. If they proceed to execution before the applicant has exhausted all possible avenues for seeking clemency, they may violate due process rights; if they delay the death penalty for too long, execution will constitute inhuman treatment. The latest and most significant of the recent decisions is Lewis & others v. Attorney-General of Jamaica [2000] 3 W.L.R. 1785.

In Three Rivers District Council and others v. Bank of England [2000] 2 W.L.R. 1220, the House of Lords answered two questions. What are the defining conditions of the tort of misfeasance in public office? What was the potential liability of the Bank of England under an EC directive relating to the exercise of its supervision over a credit institution? The questions had been raised as preliminary legal questions before further trial of the issues arising in the proceedings.

May an English court, having jurisdiction under the Brussels or Lugano Convention, decline to entertain proceedings on the basis that a court in a non-Contracting State is the forum conveniens? Many would doubt it-can national law oust jurisdiction conferred by the Conventions? But the Court of Appeal famously decided otherwise in Re Harrods (Buenos Aires) Ltd. [1992] Ch. 72. The Conventions, it concluded, are designed to harmonise the jurisdictional rules of Contracting States only to the extent necessary to facilitate the enforcement of judgments between such States, their primary concern. That objective is unaffected if a case is eventually tried in a non-Contracting State, so stays in such cases are permitted. The House of Lords in Harrods referred the point to the European Court of Justice, but the case was settled, creating uncertainty about the correct solution, yet leaving all courts but the House of Lords bound by the Court of Appeal’s decision.

It is not often that those of us who toil in one of the remotest vineyards of legal academe are rewarded. Choice of law questions over intangible property rarely seem to trouble the courts, though there are many issues of considerable intellectual interest which also raise hugely important practical implications. Maybe the area is just too difficult or perhaps all concerned are crossing their fingers that the harsh winds of a judgment will not rock the vine and bruise their fine crop (illustrated by angst following Macmillan Inc. v. Bishopsgate Investment Trust plc (No. 3) [1996] 1 W.L.R. 387). Questions such as the way in which notice must be given to an insurer when the benefit of the policy is assigned must be an everyday practicality. The consequences of giving notice improperly ought to keep some people awake at night. When so much business is done cross-border it seems astounding that the choice of law rule is almost untouched by judicial pronouncement since Le Feuvre v. Sullivan (1855) 10 Moo. P.C. 1; 14 Eng. Rep. 389, Lee v. Abdy (1886) 17 Q.B.D. 309 and the like over one hundred years ago. Raiffeisen Zentralbank Osterreich AG v. Five Star General Trading LLC [2000] 1 All E.R. (Comm) 897 raised precisely this issue. Is the notice to be given in the manner required by: (i) the lex fori; (ii) the law of the contract of assignment of the benefit of the insurance; (iii) the lex situs of the policy; or (iv) the law of the contract of insurance? Is this question proprietary or contractual?

Is the State Immunity Act 1978 the sole basis for deciding on State immunity? It is and it is not. This seemingly self-contradictory reply is due to the fact that, on the one hand, any proceedings directly or indirectly against a foreign State must be brought under the 1978 Act while, on the other, certain provisions of that Act might paradoxically render the Act itself inapplicable and therefore entail recourse to rules outside the Act for settling the issue of State immunity. This is amply illustrated by the decision of the House of Lords in Holland v. Lampen-Wolfe [2000] 1 W.L.R. 1573, which involved a claim for defamation brought by a US university professor teaching international relations at a US military base in England as part of an education programme provided by her university under a commercial agreement with the US Government. The claim was brought against the education services officer at the base, who had written a memorandum listing serious complaints about the plaintiff’s performance and questioning her professional competence. The US Government claimed immunity on the defendant’s behalf.

The House of Lords has upheld, by a majority, the decision of the Court of Appeal in Hinks [2000] 3 W.L.R. 1590 (noted (1999) 58 C.L.J. 10), giving a positive answer to the certified question: “Whether the acquisition of an indefeasible title to property is capable of amounting to an appropriation of property belonging to another for the purposes of section 1(1) of the Theft Act 1968”. The appellant had persuaded a somewhat simple-minded man to make her the “gift” of a quite considerable sum of money. No deception was alleged to have been employed, and so far as the civil law was concerned, the “gift” might well have been a perfectly valid transaction; the question was never determined by the jury, because it was deemed to be irrelevant by the trial judge. But the decision of the House of Lords is to the effect that she was properly convicted of theft however that question might have been answered. So, it would seem, a person may become the indefeasible owner of property and nevertheless be accounted a thief of that very same property, and by the very act of acquiring the ownership of it.

In Smith [2000] 3 W.L.R. 654 the House of Lords by a bare majority affirmed the decision of the Court of Appeal (noted at (1999) 58 C.L.J. 7) and in doing so resolved a long-standing dispute as to which characteristics of the defendant are relevant when determining whether the reasonable person would have lost self-control and killed the victim (the objective test of provocation). Two distinct lines of authority had developed. First, a group of House of Lords and Privy Council cases had recognised that a characteristic would only be relevant where it affected the gravity of the provocation. Secondly, a line of Court of Appeal cases had recognised a wider test, whereby a characteristic would also be relevant if it affected the defendant’s ability to exercise self-control. The House of Lords has now confirmed the latter test. Consequently, in Smith itself the defendant’s severe depression was relevant because it made him less able to exercise self-control.

For at least a century and a quarter one of the most settled and invariable maxims of the criminal law, founded upon a decision of 15 judges in the Court for Crown Cases Reserved (Prince (1875) 2 C.C.R. 154; see, also, Robins (1844) 1 C. & K. 456), has been that the prosecution did not have to prove fault on the defendant’s part in respect of the element of age in statutory offences created for the protection of the young. Many statutes have been drafted (or amended), and thousands upon thousands of defendants have been convicted, on this basis. But no longer. For the Appellate Committee has decreed, without giving any reasons for doing so-there is just a bare assertion (B. v. D.P.P. [2000] A.C. 428, reversing a unanimous decision of a strong Divisional Court: [1998] 4 All E.R. 265)—that “an age-related ingredient of a statutory offence stands on no different footing from any other ingredient”, and that proof of fault (in the shape of the absence of a belief-reasonable or unreasonable—that the child is above the proscribed age) is required unless excluded by Parliament either expressly or by “necessary implication, … [that is, by] an implication which is compellingly clear” (Lord Nicholls). “Such an implication”, we are told, “may be found in the language used, the nature of the offence, the mischief sought to be prevented, and any other circumstances which may assist in determining what intention is to be attributed to Parliament when creating the offence” (ibid.). This is, of course, none other than the all too depressingly familiar litany of vague, overlapping criteria which from time out of mind has signally failed to compel from the judges predictable answers to the question whether, when Parliament has been silent on the point, a person must, if she is to be convicted of a given offence, be presumed to have been at fault in respect of all, or some, of its external elements. The reference to a silent legislature’s intention is to a fiction—a mere rhetorical device. There is, as everyone knows, only one sure and compelling guide: the express provision of a no-fault defence logically precludes a requirement to prove fault in regard to the matter to which it refers.

An acutely difficult question of principle arises when a person commits an offence because the police incite him to do so. For the civil libertarian, “undercover agents” (as the prosecution will seek to call them) usually go by another and nastier name: secret police. Even for authoritarians entrapment is of dubious value, because policemen find the crimes they have themselves incited particularly easy to solve—and if we condone entrapment too readily we risk having a police force which expends its energy on committing new crimes instead of solving old ones. But regrettably, the use of entrapment is something effective crime prevention occasionally requires.

“The essence of contract is performance”. So argued Professor Daniel Friedmann in discussing the rationale of remedies for breach of contract ((1995) 111 L.Q.R. 628, 629). The House of Lords’ decision in Attorney-General v. Blake [2000] 3 W.L.R. 625 lends new support to this view. It holds that a claimant’s interest in performance of his contractual rights may, exceptionally, entitle him to recover restitutionary damages from the defaulting party. Measured by the defendant’s gain from the breach, rather than the claimant’s expectation or reliance loss, restitutionary damages transfer to the claimant the profit that the defendant makes by his wrong. Failing any other adequate remedy for the claimant, liability to restitutionary damages encourages the defendant to perform his duty by depriving him of the monetary incentive to commit a breach.

In the conjoined appeals Smith v. Lloyds TSB Group plc; Jones v. Woolwich plc [2000] 3 W.L.R. 1725 the Court of Appeal had the opportunity to consider the single issue of whether the true owner of a cheque or banker’s draft, which it was accepted had been “materially altered”, and so, subject to irrelevant exceptions, avoided within the terms of the Bills of Exchange Act 1882, s. 64, and subsequently converted, is entitled to damages equivalent to the face value of the instrument. In Smith the Insolvency Service drew a cheque crossed “account payee” in favour of the Inland Revenue, on behalf of the claimants, who were the joint liquidators of ILG Travel Ltd. An unknown third party stole the cheque, altered the payee’s name to “Joseph Smitherman” and paid it into an account held in that name with the defendant, Lloyds Bank plc. The cheque was cleared before the fraud was discovered and the claimants sued the collecting bank for its conversion. The facts of Jones were in all material respects identical, save that the claim was brought against the paying bank in respect of a banker’s draft. Applications were made for the summary disposal of both cases. In Smith Blofeld J. struck out the claim against the collecting bank ([2000] 1 W.L.R. 1225), but in Jones Judge Hallgarten Q.C. awarded the claimants the face value of the draft. A unanimous Court of Appeal (Pill, Potter and Stuart-Smith L.JJ.) held that the claimants in both cases were only entitled to nominal damages.

While the precise time allowed for a buyer to reject faulty goods is by no means clear, it has been understood to be short. A buyer who thought in terms of weeks, rather than days, for effecting a return might easily find himself out of time. And while the Sale of Goods Act 1979 (as amended) now guarantees a reasonable opportunity for the inspection of the goods, there are some situations where buyers who have acted with complete circumspection might still find themselves unable to reject. It is therefore quite surprising (if, indeed, stronger expressions are not called for) to find rejection of goods permitted after more than a year had passed since delivery—and this in a case where the defect could readily have been discovered on the day of delivery: Truk (UK) Ltd. v. Tokmakidis GmbH [2000] 2 All E.R. (Comm) 594. While the case does not directly conflict with any prior precedent, it does indicate an important new departure, considerably more generous to buyers.

The recent decision in Chelsea Yacht and Boat Co. Ltd. v. Pope [2000] 1 W.L.R. 1941 may be considered a timely reminder from the Court of Appeal that real property law applies to real property and not to chattels. The wonder of the case lies in how this, hardly particularly profound, proposition came to require two appeals for its elucidation, and how the learned judges in the District and West London County Courts came, in their desire to tread nimbly through the thickets of a short point of statutory interpretation, to lose sight of the particular wood into which they had wandered.

THEThe Mortgage Corporation v. Shaire [2000] 1 F.L.R. 973, is the first case to apply section 15 of the Trusts of Land and Appointment of Trustees Act 1996. Neuberger J. in the Chancery Division confirmed, contrary to dicta in TSB plc v. Marshall [1998] 2 F.L.R. 769, that on an application for an order for sale of mortgaged property section 15 gives the court greater flexibility than it had under its predecessor, the Law of Property Act 1925, s. 30.

As Lord Nicholls observed, “Divorce creates many problems”. Not least of these is determining the basis on which property should be divided between divorcing spouses, a problem with which the House of Lords had to grapple for the first time in White v. White [2000] 3 W.L.R. 1571. The case required consideration of the principles which should guide exercise of the discretion under the Matrimonial Causes Act 1973 to make capital awards, in particular in so-called “big money” cases. But the decision invites discussion of issues extending beyond the concerns of the super-rich.

In Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All E.R. 961 the Court of Appeal faced the impossible dilemma of having to decide whether to authorise a complex operation to separate Jodie and Mary, ischiopagus conjoined twins (joined at the pelvis). The condition of the babies was extremely rare, it being estimated that only about once in 100,000 births will monozygotic twins fail to separate completely. Even then, ischiopagus twins account for only about six per cent. of the total instances of conjoined twins. Another very rare peculiarity of the case was the certainty that the operation, if sanctioned, would quickly and inevitably bring about the death of the weaker twin, Mary. This was because the twins shared a common aorta. Mary’s own heart and lungs were severely deficient and incapable of oxygenating and pumping blood through her body. Her life was thus sustained only by the common artery and separation would necessarily involve clamping and severing this. It was equally clear that the effect of failing to attempt the separation would be the inevitable death of both twins within three to six months. The cause of death would be heart failure since Jodie’s heart would sooner or later fail. The parents, devout Roman Catholics, opposed the operation, believing that in God’s eyes the twins were equal and that one could not morally be sacrificed to save the other. The hospital took a different view. It believed that a successful operation could be performed which could give the stronger twin, Jodie, a reasonable prospect of a worthwhile life.

In NHS Trust v. Bland [1993] A.C. 789 the House of Lords held it lawful for a doctor to withdraw tube-delivered food and fluids from his patient in persistent vegetative state (pvs) even though this would cause death by dehydration. The most controversial aspect of the case was the further ruling by three of their Lordships that it was lawful even though the doctor’s purpose was not merely to withdraw what he regarded as a futile “medical treatment” but was precisely to kill the patient. As one of their Lordships, Lord Mustill, rightly recognised (even though he thought withdrawal ethically justifiable), this ruling left the law “morally and intellectually misshapen”, prohibiting intentional killing by an act but permitting intentional killing by omission.

For many years the problem of delay has plagued English civil proceedings. The main instrument used to counter it has been the power to strike out claims on the basis of “want of prosecution” (Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229, C.A.; Birkett v. James [1978] A.C. 297, H.L.). But, notoriously, this doctrine long ago lost its snap. Now the Court of Appeal in Securum Finance Ltd. v. Ashton [2000] 3 W.L.R. 1400 has sharpened the doctrine’s bite, or at least lengthened its leash, by deciding that this power of dismissal extends to claims which are not yet statute barred.

This article examines the doctrine of separation of powers, and attempts to defend the validity of a diversity of different conceptions of the doctrine. It also links separation of powers to efficiency, arguing that at the core of every manifestation of the doctrine is the efficient allocation of function to form. The structure of the courts and legislature are examined, and it is argued that that a link can be drawn between these institutions and the legislative and judicial task. The relationship between political theory and constitutional theory is also discussed.

In principle, the law relating to the termination of bare (or gratuitous) licences should be relatively simple. Bare licences do not enjoy statutory protection and a bare licence cannot impose contractual obligations on the licensor. There are, however, four elements which complicate the law. First, through the operation of the doctrine of proprietary estoppel, the licensor may be estopped from revoking a bare licence. Second, a licence which has been acted upon is not revocable. Third, on revocation of a bare licence, the licensee must be given a reasonable “period of grace” or “packing-up period”. Fourth, it is sometimes said that a bare licence may be revoked only “on reasonable notice.” These four elements overlap (in part) and, in the case law and academic literature, there is some degree of confusion. The difficulties which exist can be resolved by more rigorous analysis.