THERE can be little doubt that there is disagreement between the Court of Appeal and the European Court of Human Rights (ECtHR) over the whole-life sentence in England and Wales. Despite evolving jurisprudence on the issue of life-long detention emanating from Strasbourg, the Court of Appeal has readily upheld the English whole-life sentence in recent years. It has been doing so by adopting a very wide interpretation of the Secretary of State's power to order the compassionate release of a life sentence prisoner.

R (Evans) v Attorney General [2015] UKSC 21; [2015] 2 W.L.R. 813 is a case of real constitutional interest and importance. The division of opinion within the Supreme Court reflects divergent conceptions of fundamental principle. While all the Justices affirmed the principles of parliamentary sovereignty and the rule of law, they understood them differently, resulting in disagreement about their correct reconciliation on the facts of the case. The majority of Justices achieved a real integration of these basic principles in a manner that the dissentients’ superficially more straightforward approach did not.

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

IN Mellish v Motteux (1792) 170 E.R. 113, 157, Lord Kenyon observed that “in contracts of all kinds, it is of the highest importance that courts of law should compel the observance of honesty and good faith”. This passage echoes a similar statement by Lord Mansfield 25 years earlier in Carter v Boehm (1766) 97 E.R. 1162, 1910. Despite these early statements of principle, the modern common law has been notoriously hostile to the notion that contracting parties are under a general duty of good faith in the performance of their obligations (see W.P. Yee, “Protecting Parties' Reasonable Expectations: A General Principle of Good Faith” (2001) 1 Oxford U. Commonwealth L.J. 195), and there is certainly “no firm line of modern cases to support such an obligation” in English law (see L.E. Trakman and K. Sharma, “The Binding Force of Agreements to Negotiate in Good Faith” [2014] C.L.J. 598). Nevertheless, some recent decisions in Australia, Canada, and England have begun to imply obligations to perform certain types of promises, in certain classes of contracts, in an honest manner, crafting, in the words of Lord Bingham, “piecemeal solutions in response to piecemeal problems” (Interfoto Picture Library v Stiletto Visual Programmes Ltd. [1989] 1 QB 433, 439 (CA)). A recent English example is Yam Seng Pte Ltd. v International Trade Corporation Ltd. [2013] EWHC 111 (QB) in which Leggatt J. found there to be an implied duty of “honesty” and “fidelity to the bargain” in the context of a long-term distribution contract. Importantly, His Lordship emphasised that whether such obligations can be implied is a matter of construction, which involves ascertaining the parties' objective intentions through conventional techniques such as the principle of business efficacy. As implying such obligations depends entirely on the context of each contract (at paras [137]–[143]) there is, at present, no general principle of good faith performance in English contract law, despite some case-by-case recognition (see Mid-Essex Hospital Services N.H.S. Trust v Compass Group UK and Ireland Ltd. [2013] EWCA Civ 200, at [105], [150]).

IN criminal trials, just as a bad character may count against an accused, so a good character may operate in an accused's favour. It was settled by the Court of Appeal in Vye [1993] 1 W.L.R. 471 and by the House of Lords in Aziz [1996] A.C. 41 that any accused who possesses a good character becomes thereby entitled to a mandatory direction (known as a “Vye direction”) in the summing-up. The trial judge is required to instruct jurors that the accused's good character is potentially of dual significance when they come to assess both (1) the credibility of an accused who has testified or who has made admissible, exculpatory pre-trial statements and (2) the likelihood of the accused's having committed the offence(s) charged. But matters do not stop there.

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

IN OPO v Rhodes [2015] UKSC 32, the Supreme Court clarified the elements of the tort of intentional infliction of harm. Created in Wilkinson v Downton [1897] 2 Q.B. 57, the tort has long attracted the attention of academic commentators, but has rarely been argued successfully in English courts. In Wilkinson, the jury awarded the plaintiff damages for the physical suffering she endured as a result of severe shock that was caused when the defendant, playing a practical joke, falsely informed her that her husband had been injured in an accident. Wright J. held that the tort required an act be done “wilfully”, that is “calculated to cause physical harm”, and which does in fact cause “physical harm” (at 58–59). The Wilkinson formulation was subsequently endorsed by the Court of Appeal in Javier v Sweeney [1919] 2 K.B. 316 and again, 70 years later, in Khorasandjian v Bush [1993] Q.B. 727. In the latter case, the Court of Appeal emphasised that the wrongful conduct must cause “physical injury” – as distinct from “mere emotional distress” – and it must also be “calculated to cause” the same (at 735–36). Later, in Wong v Parkside Health NHS Trust [2001] EWCA Civ 172; [2003] 3 All E.R. 932, Hale L.J. appeared to qualify the mental element of the tort, observing that Wilkinson does not require actual subjective intent to cause physical harm; rather, according to her Ladyship, “calculated” means deliberately doing an act that is “likely”, all things considered, to result in the degree of physical harm that was in fact suffered (at [10]–[11]). Subsequently, Lord Hoffmann, writing the principal judgment for the House of Lords in Wainwright v Home Office [2003] UKHL 53; [2004] 2 A.C. 406, revisited both elements of the tort. He affirmed that, traditionally, it requires proof of actual harm, such as psychiatric illness, as distinct from mere distress (at [45]); and, consistently with Lady Hale's judgment in Wong, he interpreted Wilkinson as providing that the intent to cause such harm can be “imputed” to the defendant if it is an obvious consequence of a deliberate act, even though such harm may not have been subjectively appreciated or intended (at [37], [40]). Additionally, His Lordship contemplated expanding the tort to capture mere distress short of physical harm, but cautioned that, if the law was to expand to such cases (which he left to future courts to decide), “imputed intention will not do” (at [45]). Rather, mere distress should in His Lordship's view only be recoverable (if at all) where the defendant had a “genuine intention to cause distress” (at [46]).

AT the behest of the Law Commission, Contempt of Court: Scandalising the Court (18 December 2012), Parliament recently abolished the common law offence of scandalising the court (s. 33 of the Crime and Courts Act 2013). But the offence is still frequently found in many parts of the common law world and the decision of the Judicial Committee of the Privy Council in Dhooharika v DPP of Mauritius [2014] UKPC 11; [2014] 3 W.L.R. 1081 may indicate its future in common law jurisdictions. The Privy Council was asked to decide, inter alia, whether the common law offence was compatible with s. 12 of the Constitution of Mauritius. Section 12 protects a person's freedom of expression but also makes saving for any law, or any act done pursuant to law, which aims to maintain the authority and independence of the courts and which is reasonably justifiable to that end.

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

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

FAIRCHILD v Glenhaven Funeral Services Ltd. [2002] UKHL 22; [2003] 1 A.C. 32 was a hard case that made bad law. Now, for the fourth time, an appeal has gone to the highest tribunal, to unravel Fairchild's resulting complications. International Energy Group Ltd. v Zurich Insurance plc. [2015] UKSC 33; [2015] 2 W.L.R. 1471 (“Zurich”) represents “yet another demanding chapter in [that] difficult series of decisions”: at [189], per Lord Neuberger and Lord Reed. Zurich's resolution took seven judges, in four reasoned judgments, 211 paragraphs, or 80 pages of the law reports – some 46,000 words.

A claims an interest in B's property; C is a purchaser who is unaware of A's claim. This is a typical land law dispute involving two innocent parties (A and C). Registration systems generally set out to protect C – it is thought compelling that purchasers should be able to rely on the register to buy land quickly and risk-free. However, there are some limits to this protection.

IN Hounga v Allen [2014] UKSC 47; [2014] 1 W.L.R. 2889, the Supreme Court unanimously upheld a claim in the statutory tort of discrimination by a woman who had been dismissed from her employment. The fact that the woman had been working in breach of immigration laws did not enliven the illegality defence. Hounga is one of several recent cases in which the illegality defence has been examined at the ultimate appellate level, the other decisions being Gray v Thames Trains Ltd [2009] UKHL 33; [2009] 1 A.C. 1339, Stone & Rolls Ltd v Moore Stephens [2009] UKHL 39; [2009] A.C. 1391, and Les Laboratoires Servier v Apotex Inc [2014] UKSC 55; [2014] 3 W.L.R. 1257. The fact that the defence has been considered so frequently as of late at the apex level seems to confirm that the Law Commission was wrong in its prediction, made shortly after Gray and Moore Stephens were decided, that the defence would be brought into a satisfactory state if responsibility for reforming it was left to the courts (The Illegality Defence (Law Com 320, 2010), at [3.37]–[3.41]). We are not alone in holding this view. Writing extra-judicially, Lord Mance and Lord Sumption have called for the Law Commission to re-examine the defence (J. Mance, “Ex Turpi Causa – When Latin Avoids Liability” (2014) 18 Edinburgh Law Review 175, 192; J. Sumption, “Reflections on the Law of Illegality” (2012) 20 Restitution Law Review 1, 8–12). We argue here that Hounga perpetuates (and possibly aggravates) the difficulties from which this area of law suffers.

THE Riot (Damages) Act 1886 rarely looms large in the legal imagination. It is brief and apparently straightforward. Section 2(1) of the Act obliges police authorities to compensate owners whose property has been damaged by “persons riotously and tumultuously assembled together” in their area. There is, notably, no requirement to show that the police were at fault. Two appellate cases on the Act arose from disturbances at the Yarl's Wood detention centre in 2002 (see D.J. Feldman [2010] C.L.J. 433). The London (and nationwide) riots of 2011 have occasioned further consideration.

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

THE European Court of Human Rights' (ECtHR) judgment in Jones and others v U.K. (2014) 59 E.H.R.R. 1 is the latest word on a long-running debate about whether public international law excludes foreign State immunities before domestic courts in civil proceedings relating to the violation of jus cogens norms, particularly the prohibition against torture. The case joined applications by Mr. Jones and Messrs. Mitchell, Sampson and Walker, all British (or dual) nationals, alleging that the UK's grant of immunity to Saudi Arabia (in Mr. Jones's case) and to Saudi Arabian public officials (in both cases) amounted to a disproportionate interference with their right of access to court under Article 6 of the European Convention on Human Rights (ECHR). The ECtHR decided, by six votes to one, that the House of Lords' judgment in Jones vMinistry of Interior Al-Mamlaka Al-Arabyia AS Saudiya (the Kingdom of Saudi Arabia) [2006] UKHL 26; [2007] 1 A.C. 270) (“Jones [HL]”) was correct in finding that public international law did not recognise a “torture” exception to the general rule of State immunity in civil proceedings and, consequently, did not infringe Article 6 of the ECHR.

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

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

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

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

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

2. (1A) Those things are –

   • to understand the nature of D's conduct;

   • to form a rational judgment;

   • to exercise self-control. …

A standard land law problem is that land, or an interest in it, is claimed by two persons, usually as a result of a mistake or fraud of a third party, not worth suing. Both of the claimants are innocent parties. Common law solutions tend to an all-or-nothing approach – one person wins and the other loses. Land registration possesses the significant advantage that compensation (indemnity) may be paid to the losing party. For this to be possible, either a loss must be caused by rectification of the register or there must be a loss which requires rectification to be remedied. So, if the wrong person is registered as proprietor, whoever loses the land (which is likely to turn on the rules for rectification of the register) will be compensated. There has been little litigation on indemnity, but it was established by Re Chowood's Registered Land [1933] Ch. 574 that a purchaser bound by an overriding interest is not entitled to indemnity. Rectification of the purchaser's title recognises existing legal rights to the land and itself causes no loss to the purchaser.

DIRECTORS owe their company a duty to act bona fide in the company's interests. When the company is insolvent, directors must consider the interests of creditors. The content of this duty, however, has never been clearly articulated. In particular, is a director in breach of his duty if he prefers one creditor to another? In Moulin Global Eyecare Holdings Ltd. v Olivia Lee Sin Mei (2014) 17 H.K.C.F.A.R. 466, Gummow N.P.J., sitting in the Hong Kong Court of Final Appeal, answered this question in the affirmative. This note (1) outlines the facts in Moulin; (2) considers the case law and the nature of the duty; and (3) compares the duty with the statutory preference provisions.

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