An inspector's-eye view - The prospective enforcement of work-related fatality cases

This paper concerns the prospective implementation of the proposed 'corporate killing' offence. These proposals suggested that the Health and Safety Executive (HSE)-the body currently responsible for regulating work-related health and safety issues-should handle cases in which a 'corporate killing' charge is a possibility. Relatively little attention has been paid to this issue of implementation. An empirical investigation was undertaken to assess the compatibility of the HSE's methodology and enforcement philosophy with the new offence. It was found that inspectors categorize themselves as enforcers of criminal law, see enforcement action as valuable and support the new offence, but disagree over its use. They also broadly supported the HSE taking responsibility for the new offence. This suggests that 'corporate killing' may not necessarily be incompatible with the HSE's modus operandi, and there may be positive reasons forgiving the HSE this responsibility.

Juror stereotypes and blame attribution in rape cases involving intoxicants - The findings of a pilot study

Prior to recent legislative changes, sexual offences were contained in a combination of statutory provisions and common law that was criticized as being ill-equipped to tackle the intricacies of modern sexual (mis)behaviour. This pilot study explored the capacity of these provisions to address the complexities of drug-assisted rape using focus groups and a trial simulation to identify factors which influenced jurors in rape trials involving intoxicants. The findings revealed that jurors considered numerous extra-legal factors when reaching a decision: rape myths, misconceptions about the impact of intoxicants and factors such as the motivation of the defendant in administering an intoxicant. This paper draws upon these findings, focusing in particular on the interaction between juror attributions of blame and stereotypical conceptions about intoxication, sexual consent and drug-assisted rape. The findings of this pilot study form the basis for a larger-scale project (ESRC -funded, commenced January 2004) that examines this interaction in the context of new provisions under the Sexual Offences Act 2003.

Ownership rights in performance-based contracting: A case study of English law

Clients and contractors need to be aware of the project’s legal environment because the viability of a procurement strategy can be vitiated by legal rules. This is particularly true regarding Performance-Based Contracting (PBC) whose viability may be threatened by rules of property law: while the PBC concept does not require that the contractor transfers the ownership in the building materials used to the client, the rules of property law often lead to an automatic transfer of ownership. But does the legal environment really render PBC unfeasible? In particular, is PBC unfeasible because contractors lose their materials as assets? These questions need to be answered with respect to the applicable property law. As a case study, English property law has been chosen. Under English law, the rule which governs the automatic transfer of ownership is called quicquid plantatur solo, solo credit (whatever is fixed to the soil belongs to the soil). An analysis of this rule reveals that not all materials which are affixed to land become part of the land. This fate only occurs in relation to materials which have been affixed with the intention of permanently improving the land. Five fictitious PBC cases have been considered in terms of the legal status of the materials involved, and several subsequent legal questions have been addressed. The results suggest that English law does actually threaten the feasibility of PBC in some cases. However, it is also shown that the law provides means to circumvent the unwanted results which flow from the rules of property law. In particular, contractors who are interested in keeping their materials as assets can insist on agreeing a property right in the client’s land, i.e. a contractor’s lien. Therefore, the outcome is that English property law does not render the implementation of the PBC concept unfeasible. At a broader level, the results contribute to the theoretical framework of PBC as an increasingly used procurement strategy.

Mediating punitiveness: understanding public attitudes towards work-related fatality cases

This paper concerns an empirical investigation into public attitudes towards work-related fatality cases, where organizational offenders cause the death of workers or members of the public. This issue is particularly relevant following the introduction of the Corporate Manslaughter and Corporate Homicide Act 2007 into UK law. Here, as elsewhere, the use of criminal law against companies reflects governmental concerns over public confidence in the law’s ability to regulate risk. The empirical findings demonstrate that high levels of public concern over these cases do not translate into punitive attitudes. Such cases are viewed rationally and constructively, and lead to instrumental rather than purely expressive enforcement preferences.

Redefining the outer boundaries of EU Law: the Zambrano, McCarthy and Dereci trilogy

In its three recent rulings in the cases of Zambrano, McCarthy, and Dereci, the Court appears to have been determined to redefine the external boundaries of EU law, in cases involving the family reunification rights of Union citizens.These three judgments can be read as an indication that for Article 20 TFEU to apply, there is no longer a requirement of a cross-border element on the facts of the case, and that it is sufficient if the contested national measure has the effect of ‘depriving citizens of the Union of the genuine enjoyment of the substance’ of their rights (the ‘Zambrano principle’).The cases can, at the same time, also be read as a confirmation that the free movement provisions do – still – require a cross-border element and, in particular, the exercise of inter-State movement, in order to apply. Though the result in these cases has not been entirely unexpected, especially in the aftermath of the Rottmann ruling, it is rather problematic in that, although it is obvious that the Court wishes to redraw the line dividing the national and EU spheres of competence, it does not make it entirely clear where this line now lies and leaves many essential questions unanswered, which will obviously require some time to be resolved. EU lawyers are consequently, once more, left with having to decipher as best as they can the real intentions of the Court in this new line of case-law, which has been further complicated by the fact that what the Court seems to have given with one hand in Zambrano (and before that in Rottmann), has taken it back to a large extent through its rulings in McCarthy and Dereci, which appear to confine the former two cases to their own exceptional facts.6 Moreover, the ‘reverse discrimination Pandora’s box’, the opening of which appears to have been the real target of these references, remains untouched: instead of providing a direct solution to this problem, the Court has chosen to – once again – broaden the scope of the Treaty provisions in order to include within it as many situations as possible and, thus, prevent the emergence of this type of differential treatment on a case-by-case basis.As will be explained, nonetheless, this is by no means an appropriate solution to the reverse discrimination conundrum.

A new parenthood paradigm for twenty-first century family law in England and Wales?

There are few other areas in family law where incongruence between the legal and social positions is as evident as that concerning parenthood. Recent cases involving lesbian couples and known sperm donors serve to highlight the increasing tension between the respective roles of biology, intention and functional parenting in the attribution of legal parental status. As both legislative and case-law developments have shown, intention is central in some circumstances, but not in others. The main claim of this paper is that this ad hoc approach leads to incoherent and unsatisfactory law: instead of striving to identify a status, what we are really looking to do is to identify the people who assume responsibility for a child. Drawing upon recent case-law, this paper explores how a conceptual reform of the law could result in a principled framework which would place formally recognised intention at the heart of parental status in order to reconnect legal duty with social reality for as many children and parents as possible. Moreover, it would ensure that parental status would not be dictated by the mode of conception of the child (natural or assisted). The analysis identifies the objectives of reform before proposing a new model which, while recognising the social importance of the biological parentage link, would reserve legal status for functional parenthood.

Construction contracts: law and management. 4th edition

This is a fully revised edition of the UK’s leading textbook on the law governing construction contracts and the management and administration of those contracts. Although the legal principles involved are an aspect of general contract law, the practical and commercial complexities of the construction industry have increasingly made this a specialist area. This new edition has been brought up to date with recent cases and developments in the law as it stands at March 2007. The basic approach of the book has been retained. Rather than provide a commentary on standard-form contracts, our approach is to introduce the general principles that underlie contracts in construction, illustrating them by reference to the most important standard forms currently in use. Some of the common standard-form contracts have been revised since the previous edition, and the text has been revised to take account of these changes. Practitioners (consultants, builders, clients and lawyers) will find this an extremely useful source of reference, providing in-depth explanations for all of the features found in contemporary construction contracts, with reasons. A unique feature of this book is the way that it brings together the relevant principles of law with the practical issues arising in construction cases. It is a key text for construction undergraduates and postgraduates as well as for those taking the RIBA Part III and CIOB Part II examinations.

The 'welfare of the child' in Shari'a law: an analysis of child custody law and practices in Bangladesh from a feminist perspective

The paper seeks to draw attention to some of the recent cases relating to child custody law in Bangladesh where, deviating from orthodox Shari’a rules, courts have looked to ‘the welfare’ of the child in determining which parent shall have custody. In studying the recent ‘welfare of child’ standard that has been advanced by the courts in Bangladesh, the paper aims to explore its implications for Muslim women from a feminist perspective.

Conflicts of law and the mutual recognition of same-sex unions in the EU

My thesis uses legal arguments to demonstrate a requirement for recognition of same-sex marriages and registered partnerships between EU Member States. I draw on the US experience, where arguments for recognition of marriages void in some states previously arose in relation to interracial marriages. I show how there the issue of recognition today depends on conflicts of law and its interface with US constitutional freedoms against discrimination. I introduce the themes of the importance of domicile, the role of the public policy exception, vested rights, and relevant US constitutional freedoms. Recognition in the EU also depends on managing the tension between private international law and freedoms guaranteed by higher norms, in this case the EU Treaties and the European Convention on Human Rights. I set out the inconsistencies between various private international law systems and the problems this creates. Other difficulties are caused by the use of nationality as a connecting factor to determine personal capacity, and the overuse of the public policy exception. I argue that EU Law can constrain the use of conflicts law or public policy by any Member State where these are used to deny effect to same-sex unions validly formed elsewhere. I address the fact that family law falls only partly within Union competence, that existing EU Directives have had limited success at achieving full equality and that powers to implement new measures have not been used to their full potential. However, Treaty provisions outlawing discrimination on grounds of nationality can be interpreted so as to require recognition in many cases. Treaty citizenship rights can also be interpreted favourably to mandate recognition, once private international law is itself recognised as an obstacle to free movement. Finally, evolving interpretations of the European Convention on Human Rights may also support claims for cross-border recognition of existing relationships.