Property in body parts and products of the human body

An intriguing question, which until recently had not been directly explored by the courts, is the extent to which English law recognises body parts and products of the human body as property capable of ownership. Although the common law currently recognises no general property in a dead body (and only limited possessory rights in respect of it), this apparent “no-property rule” provides no justification, it is submitted, for denying proprietary status to parts or products of a living human body. The recent decision of the Court of Appeal in Yearworth v. North Bristol NHS Trust ([2009] EWCA Civ 37) lends strong support to the view that genetic material (as the product of a living human body) is capable of ownership, at least in the context of a claim in the tort of negligence and bailment. This article examines the various issues by reference to both English and Commonwealth authority.

Meaning of "residing with" and succession rights

Reviews case law on the meaning of the phrase "residing with" as used in the Housing Act 1985 s.87 to identify one of the qualifying requirements for the right to succeed to a secure tenancy. Focuses on the Court of Appeal decision in Freeman v Islington LBC on whether a daughter intended to have her settled home with her father where, in the year preceding her father's death she lived with him full time in order to care for him whilst retaining her own flat and using it as her correspondence address for everything but her credit card. Lists conclusions that can be drawn from the case law.

Chattels: I have bought it all for you

Outlines the ways by which personal property can be acquired through the gift of chattels, referring to case law including the Court of Appeal rulings in Re Cole (A Bankrupt) and Re Kirkland, and through the declaration of trust, with reference to the Chancery Division ruling in Rowe v Prance. Compares this to the use of constructive trusts or proprietary estoppel to secure assets and considers the need to prove detrimental reliance.

Duty of care and slippery floors

Reflects on the scope of a shop owner's duty of care under the Occupiers' Liability Act 1957 to keep floors clear of spillages. Reviews the principles formulated by the Court of Appeal in Ward v Tesco Stores Ltd, including the evidential burden to show the discharge of the duty, and the approach adopted in subsequent cases. Discusses the High Court ruling in Piccolo v Larkstock Ltd (t/a Chiltern Flowers) on whether a small florist on Marylebone Station concourse was obliged to keep the floor dry and petal-free at all times and notes the importance of a proper system to safeguard customers.

Paying the price for loss of light

Considers the Court of Appeal ruling in Forsyth-Grant v Allen on the principles to be applied in assessing damages for the loss of light. Outlines the method for calculating damages for loss of right to light, the type of amenity which will be included in calculations for loss of amenity and the process applied in this case for assessing damages arising from the loss of profits that would have been made by the owner of the right to light if they had negotiated to relax the covenant, with reference to case law. Notes the limits to damages available for hypothetical loss and the difference between this award of profits and an account of profits.

Hazard and risk assessment from Hurricane Ivan (2004) in Grenada using Geographical Information Systems and remote sensing

Hurricanes are destructive storms with strong winds, intense storm surges, and heavy rainfall. The resulting impact from a hurricane can include structural damage to buildings and infrastructure, flooding, and ultimately loss of human life. This paper seeks to identify the impact of Hurricane Ivan on the aected population of Grenada, one of the Caribbean islands. Hurricane Ivan made landfall on 7th September 2004 and resulted in 80% of the population being adversely aected. The methods that were used to model these impacts involved performing hazard and risk assessments using GIS and remote sensing techniques. Spatial analyses were used to create a hazard and a risk map. Hazards were identied initially as those caused by storm surges, severe winds speeds, and flooding events related to Hurricane Ivan. These estimated hazards were then used to create a risk map. An innovative approach was adopted, including the use of hillshading to assess the damage caused by high wind speeds. This paper explains in detail the methodology used and the results produced.

The Effect of Human RIghts on Criminal Evidentiary Processes: Convergence, Divergence or Realignment?

This article examines the contribution which the European Court of Human Rights has made to the development of common evidentiary processes across the common law and civil law systems of criminal procedure in Europe. It is argued that the continuing use of terms such as 'adversarial' and 'inquisitorial' to describe models of criminal proof and procedure has obscured the genuinely transformative nature of the Court's jurisprudence. It is shown that over a number of years the Court has been steadily developing a new model of proof that is better characterised as 'participatory' than as 'adversarial' or 'inquisitorial'. Instead of leading towards a convergence of existing 'adversarial' and 'inquisitorial' models of proof, this is more likely to lead towards a realignment of existing processes of proof which nonetheless allows plenty of scope for diverse application in different institutional and cultural settings.

Removing children from the care of adults with diagnosed mental illnesses - a clash of human rights?

Health and social services providers throughout Europe are increasingly aware of the possibility of litigation from service users arising from the application of a human rights perspective to public service provision. The substantial body of case law that has emerged from the European Court of Human Rights (ECHR) is used regularly as the basis for this litigation at national and European levels. This paper presents an analysis of ECHR cases related to breaches of human rights that occurred when children were taken into care from families in which one or both parents had a diagnosed mental illness. The issues raised by these cases include the following: how to ensure that the right to family life is protected for adults with mental illnesses; how to ensure access and opportunities for parents to continue bonding with children in care; and how to avoid damaging children while giving time for a proper assessment of the care situation.

The Record of the House of Lords in Strasbourg

This article reviews the outcomes in those cases between 1966 and 2009 where a claimant who lost in the House of Lords went on to lodge an application with the European Commission or Court of Human Rights.

Multiculturalism, freedom of religion, equality, and the British constitution: The JFS case considered

In the JFS case, the Supreme Court of the United Kingdom held that the admissions policy of a Jewish faith school constituted unlawful racial discrimination because it used the Orthodox Jewish interpretation of who is Jewish as a criterion for determining admission to the school. A detailed discussion of the case is located in the context of two broader debates in Britain, which are characterized as constitutional in character or, at least, as possessing constitutional properties. The first is the debate concerning the treatment of minority groups, multiculturalism, and the changing perceptions in public policy of the role of race and religion in national life. It is suggested that this debate has become imbued with strong elements of what has been termed “post-multiculturalism”. The second debate is broader still, and pertains to shifting approaches to “constitutionalism” in Britain. It is suggested that, with the arrival of the European Convention on Human Rights and EU law, the U.K. has seen a shift from a pragmatic approach to constitutional thinking, in which legislative compromise played a key part, to the recognition of certain quasi-constitutional principles, allowing the judiciary greatly to expand its role in protecting individual rights while requiring the judges, at the same time, to articulate a principled basis for doing so. In both these debates, the principle of equality plays an important role. The JFS case is an important illustration of some of the implications of these developments.

Article 260(2) TFEU: An Effective Judicial Procedure for the Enforcement of Judgments?

Article 260(2) TFEU (ex 228(2) EC) enables the European Court of Justice to enforce compliance with its judgements. This article analyses its use in doing so and questions whether it could be applied more effectively. It commences by highlighting the principally economic and environmental context of the case-law, and by examining the initiatives taken to tackle delays in bringing these cases before the Court. The article then critically evaluates the effectiveness of the financial sanctions available to the Court. In doing so, it aims to fill a gap in present research by looking beyond the procedural measures through which the Court and the Commission operate to examine the practical impact of Article 260(2) itself.

Germany v Italy:The Triumph of Sovereign Immunity over Human Rights Law

This article analyses the doctrine of State immunity within the context of the recent judgment of the International Court of Justice (ICJ) concerning the Jurisdictional Immunities of the State (Germany v Italy: Greece intervening). The object of this article is to explore the implications of the State immunity from foreign judicial proceedings in cases of jus cogens crimes. Challenging the assumption that the law of immunity is merely procedural in nature, this article argues that there can be no immunity in cases of undisputed international crimes.

Article 6 ECHR, Civil Rights and the Enduring Role of the Common Law

This article examines the role that the common law has played in Human Rights Act 1998 case law on the protection of 'civil rights' within the meaning of Article 6 ECHR. Focusing on Article 6 ECHR's 'disclosure' and 'full jurisdiction' requirements, it highlights an increasingly nuanced relationship between the ECHR and common law in cases under and outside the Human Rights Act 1998. Although the general pattern within the case law has been one of domestic court fidelity to the ECHR - something that is wholly consistent with section 2 of the Human Rights Act 1998 - the article notes areas in which the courts have been reluctant to adapt common law principles, as well as instances of common law protections exceeding those available under Article 6 ECHR. The article suggests that such lines of reasoning reveal a robustness within the common law that brings a multi-dimensional quality to the Human Rights Act 1998. It also suggests that such robustness can be analysed with reference to 'common law constitutionalism' and a corresponding imagery of 'dialogue' between the domestic courts and European Court of Human Rights.