Sixty years have passed since occupiers in England and Wales were placed under a statutory duty to keep visitors to occupied premises reasonably safe. The legislation, however, did not detail the exact operation of this duty of care. The case law, expected to fill in the gaps, has arguably developed without sufficient consistency and/or predictability. This apparent confusion can be remedied through applying a systematic test to the question of whether a breach of duty has occurred. The test follows the verification that the case falls within the field of occupiers’ liability because of the presence of a danger attributable to the state of the premises. It consists of three consecutive stages which ask: (1) whether the risk of injury was foreseeable; (2) whether the occupier could reasonably have been expected to have addressed this very particular risk; and (3) whether any remedial action the occupier actually took was appropriate.

In recent years, it has become common to see claims that the doctrine of legitimate expectations has no sufficiently defined purpose, and that administrative law scholars should do more theoretical work to bring coherence to this area of law. In this paper, I suggest this ‘conceptual critique’ of legitimate expectations is misplaced and that, instead, it reveals a much wider failing of contemporary administrative law scholarship. First, I show how there has not yet been, and is unlikely to be, a satisfactory answer to the conceptual critique. Following on from this premise, I suggest that the assumptions underlying the conceptual critique are faulty and, administrative lawyers need to fundamentally alter and expand how they study legitimate expectations. The aim now, I argue, must be to move towards providing an account of the practice of legitimate expectations in the wider context of public administration. My specific argument in this paper is thus a case for a significant reorientation and an expansion of the study of how law protects legitimate expectations, but the wider suggestion is that the same shift is required in administrative law scholarship generally.

This paper focuses on consumer-generated reviews (CGRs), which are an increasingly influential source of consumer information. In particular, the paper highlights specific problems associated with CGRs, which questions their role as a reliable information source. Flowing from this, the paper calls for closer regulatory scrutiny of review platforms, which play an important intermediary role in facilitating the provision of CGRs. To this end, the paper considers possible regulatory responses in the EU which may address some of the issues highlighted.

This paper presents the findings of an empirical study conducted with local enforcement agents in two areas in England regarding the implementation of the anti-social behaviour injunction which succeeded the anti-social behaviour order (ASBO). These findings shed light on the procedure followed by local enforcement agents when dealing with an incident of anti-social behaviour. The data presented suggests that despite the recent legislative amendments, much of the regulation of anti-social behaviour still takes place in the ‘shadows’ with local enforcement agents utilising a range of informal interventions before applying to court for the issue of an injunction. Moreover, it is argued that despite the repeal and replacement of the ASBO by what appears to be a purely civil measure, many of the criticisms raised about the order and its potential misuse remain largely unaddressed.

It is common for a legal system to allow a person, in certain circumstances, to gain ownership of land by possessing it for a period of time. This is certainly true of both Scotland and England, although what is precisely required for possession to be established may differ on particular points between the two. One point on which the two may differ is the effect of a unilateral permission to occupy that is given to someone currently occupying the land without any right to be there. This point has most recently been considered from the point of view of English law in Smith v Molyneaux [2016] UKPC 35, [2017] 1 P & CR 7. In this paper, that case and the issues it raises are considered from the point of view of Scots law. It is found that this point raises more general questions about the nature of the mental element of possession, the state of mind with which one must occupy the property in order to be considered a possessor.

Contemporary criminal justice is premised on a rights-bearing defendant safe-guarded by due process from arbitrary state punishment. The paucity of academic commentary on the role of the criminal defendant suggests that there is a common assumption that the role is static. However, the rights-bearing defendant is a relatively new concept. Through a legal history analysis, this paper demonstrates that the defendant's role can mutate in response to pressures placed on the criminal trial. Broadly, there have been three conceptualisations of the defendant: the penitent Anglo-Norman defendant; the advocate defendant of the jury trial; and the rights-bearing adversarial defendant. Importantly, the shift from one conceptualisation to another has occurred gradually, often without commentary or conscious effort to instigate change. There are many contemporary pressures that could be impacting on the rights-bearing defendant. The concept of a mutable defendant provides a new theory through which to analyse these pressures. This paper considers the introduction of adverse inferences regarding the right to silence and disclosure, and the rise of ‘digilantism’. These new pressures, it is suggested, help to facilitate a rhetoric of deservingness that goes against the rights-bearing defendant and raises the risk its role could once again be mutating.

This paper highlights two recurring facets of the way UK courts approach the construction of patent claims: the adoption of methods typically applied to the interpretation of contracts and the recognition that immaterial variations not expressly claimed nevertheless fall within the scope of protection. Drawing on the normative implications arising out of Ronald Coase's paper on the problem of social cost, this paper argues that the patent system operates as a substitute for an explicit bargain between economically active entities operating in the market under which a duty is accepted by one party in return for acceptance of a burden of risk by the other. This perspective incorporates both the static costs and the dynamic benefits of the system and accords with the monopoly-profit-incentive theory most commonly advanced in support of the patent system. It is shown how the contemporary approach to claims construction is supported by the object of giving effect to the presumed intentions of the parties to this hypothetical bargain and that this underpins both the implication of terms which go beyond those expressly agreed to by parties to a contract and the construction of patent claims so as to embrace immaterial variations not expressly within their scope.

War crimes allegations have dogged the UK military for decades. Yet there is no settled process to deal with them. Different legal responses deployed have all suffered from complaints of unfairness. This paper proposes foundations for a more satisfactory approach based on an existing three-part consensus. First, that norms governing individual and systemic conduct in military conflict are relatively undisputed; secondly, that the state has a non-negotiable investigatory duty should a suspected breach occur; and thirdly, that any investigation should take into account the context within which it is conducted. The paper then advances three propositions: (1) first order principles of practicability, expertise, and investigator independence should provide the non-negotiable foundations of any response; (2) second order or subsidiary principles including promptness, adequacy, reasonable transparency, and respect for basic standards of natural justice should apply when practicable; and (3) a standing institution designed to comply with the first and second order principles would provide a fairer process for all participants (accused, victim and the wider national and international communities) whilst also fulfilling coherence and legal certainty requirements. The paper concludes that current structures cannot fulfil these demands and it explores the basis for a better alternative.

Coexisting and eye-watering levels of food abundance, waste, overconsumption and hunger are symptomatic of a broken food system punctuated by vested interests in systematic overproduction. Against that backdrop, this paper evaluates England's ‘new’ approach to food waste in light of concerns that policy-makers have framed food waste as a consumer behaviour problem, rather than a structural challenge. The Resources and Waste Strategy's acknowledgement of normalised overproduction is thus remarkable, but unexpected. However, frame critical analysis reveals how an apparent departure from preoccupations with economic growth, combined with promises of government action, obscure an ongoing reluctance to intervene against powerful interests and the causes (not symptoms) of food waste. Legislative proposals, rather than reducing surplus, shift the burden of redistributing food away from the state and retailers, on to charities and farmers. With England, perhaps wrongly, seen as a world-leader on food waste, this has implications for other jurisdictions, as well as forthcoming consultations.

Following concerns that the art market is being used to launder criminal money and fund terrorist activities, measures have recently been introduced to subject the market to the anti-money laundering (AML) regime – such as the EU 5th Money Laundering Directive (2018) and the US Illicit Art and Antiquities Trafficking Prevention Bill (2018). The expansion of the AML regime to include art dealers has been attributed to the failure of regulation and the vulnerabilities inherent in the market to laundering. This paper considers vulnerabilities to money laundering and examines the types of regulation that apply in the art market. The paper then goes on to analyse the application of AML criminal law and preventive measures in the UK context, demonstrating that art dealers can be criminally prosecuted for engaging in normal commercial activities. Even if dealers do comply with AML reporting rules, such compliance can significantly impact upon their business. These are important considerations given the government's emphasis on striking a balance between the burdens on business and deterring money laundering activities. Drawing upon the AGILE analytical framework, we remain sceptical about the continued expansion of the AML regime.

In her early work, the feminist legal scholar Erika Rackley uses the image of Ronald Dworkin's superjudge Hercules to shed light on the experience of the woman judge and on law and adjudication in the liberal legal order. She sees Hercules as representing the judge ‘who inhabits our legal imagination’, and as conjuring up problematic notions of unimpeachable wisdom, detached neutrality and super-humanism. This paper assesses Rackley's argument in light of the feminist judgments scholarship that has emerged in the meantime. It contests Rackley's claim that Hercules, or what he represents, is a patriarchal influence in the real world of law, and argues that he might instead be understood to accommodate, or even to encourage, principled evolutions in law along the lines of those suggested by the feminist judgments literature. This assessment is done mainly through the lens of Stokes v CBS Clonmel, a judgment of the Irish Supreme Court concerning indirect discrimination that was later the subject of a feminist judgment in the Northern/Irish Feminst Judgments volume. The broader aim of this assessment is to interrogate the insights and implications of feminist judgments scholarship.

The paper is in four parts. Part 1 places feminist approaches to adjudication in broader theoretical context. Part 2 considers Dworkin's theory of adjudication and Rackley's critique. Part 3 sets out the approach taken by both the real-world and feminist judges in the Stokes case. Part 4 critiques Rackley's take on Hercules in light of the approach adopted in those judgments and draws on preceding analysis to interrogate the insights and implications of feminist judgments scholarship.

This paper examines the law on good character evidence in criminal trials through a discussion of the important but under-analysed case of Hunter, in which a five-judge Court of Appeal sought to clarify the law on good character directions to the jury. However, it is argued here that the judgment conflicts with the leading House of Lords decision in Aziz. The paper considers how the court misinterpreted the law and, in particular, the defeasible nature of the rule in Aziz and the impact of the Criminal Justice Act 2003. As a result, the circumstances in which a good character direction will be provided have diminished significantly. It is argued that this has important implications for the right to a fair trial, as good character directions act as a ‘backstop’ against miscarriages of justice. They also form a vital part of the ‘framework of fairness’ considered necessary, in lieu of reasoned jury verdicts, by the Grand Chamber of the European Court of Human Rights in Taxquet v Belgium. Accordingly, it is contended that Aziz rather than Hunter should be followed so that, where there is evidence of good character, a direction is normally provided as a matter of law.

Society thinks, talks, and communicates in ways which are inherently different now from the pre-Internet era. Hashtags in particular have transformed community formation around a particular topic, issue, or goal. A new and relatively under-studied phenomenon is that of ‘hashtag hijacking’, where individuals or groups use a particular hashtag to draw attention to arguments and narratives which undermine or oppose the hashtag's objective. Most of the current literature looks at hashtag hijacking as a positive outlet for counter-discourse/counter-narratives to challenge dominant groups. This study, however, looks at the ‘dark side’ of hashtag hijacking, where groups use trolling tactics similar to the Alt_Right to reinforce misogynistic views. The hijacking of three hashtags is explored in this study: #notacriminal, #women2drive, and #mydressmychoice, to explore feminist theories on the role of social media in a ‘public space’. Does Twitter function as one common public sphere where inequalities are so deeply embedded that minority voices have no hope of being heard? Or does Twitter function as a meeting place for multiple competing public spheres, thus allowing minority – and in this case feminist – voices to be heard?

This paper is concerned with the legal and regulatory control of electoral campaigning online, in particular ‘microtargeting’. There has been a longstanding consensus in the UK on how to control political advertising, yet the shift of expenditure to the online environment, together with innovations in digital campaigning tools, are exposing tensions and gaps in the current regime. One central harm associated with microtargeting is its potential to undermine meaningful democratic deliberation. The paper interrogates the issues through the lens of electoral law and regulation, and questions the extent to which a recalibration is necessary to deal with the challenges of digital campaigning.