Recent Submissions

  • Codifying the Law on Evidential Burdens

    Glover, Richard M. (Vathek Publishing, 2008)
    This article examines the concept of the evidential burden and argues that the decision in R v Malinina illustrates that the concept of the evidential burden is in desperate need of clarification. It will be contended that, ultimately, codification would be the best means of achieving that end.
  • Pre-appointment administration fees - papering over the cracks in pre-packs?

    Walton, Peter (Sweet & Maxwell, 2008)
    Considers the remuneration of insolvency practitioners for work done on pre-packaged administrations (pre-packs). Examines the proposed amendments to the Insolvency Rules 1986 dealing with pre-appointment expenses, the rights of unsecured creditors, management buy-outs and conflicts of interest, and concerns over the transparency and legitimacy of pre-packs.
  • Data-sharing and Crime Reduction: The Long and Winding Road

    Brookes, Stephen; Moss, Kate; Pease, Ken (Palgrave Macmillan, 2003)
    The Crime and Disorder Act 1998 charges responsible authorities with devising and implementing strategies for community safety. Responsible authorities comprise police and local authorities, working as partnerships. Criteria for the permissible exchange of relevant data are to be found in the Act. In practice, partnerships have experienced difficulties in reaching agreement about datasharing. This paper looks at the legal background to data-sharing, its limitations, best practice, and the potential consequences of lowering barriers to information exchange.
  • Crime Reduction

    Moss, Kate (Routledge (Taylor & Francis), 2008)
    Across the globe, challenging and contentious issues about community safety and security increasingly exercise governments and police forces—as well as, for example, town planners and car-park designers. Consequently, as a specialist area within the wider discipline of criminology, crime reduction has never before enjoyed such prominence in public and scholarly discourse. With research on and around the subject flourishing as never before, this new title in the Routledge Major Works series, Critical Concepts in Criminology, meets the need for an authoritative reference work to make sense of the subdiscipline’s colossal literature and the continuing explosion in research output and practice. Edited by Kate Moss, a prominent academic in the field, Crime Reduction is a four-volume collection of foundational and cutting-edge scholarship. The first volume in the collection (‘Approaches to Reduction’) brings together the best research on the different approaches to crime reduction, including its classification and theory, and ideas of what is preventable. The work gathered here also includes criticisms of crime reduction, not least research around the phenomena of displacement and sustainability. Volume II (‘Motivation of the Criminal Inclination’) collects the most important work on issues of crime reduction, particularly those concerned with what one thinker has described as ‘structure and psyche’. The scholarship in this volume draws both on the structural perspective (which emphasizes the view that reduction is achievable only through economic and social change, especially by ameliorating inequality or levels of social exclusion), and the ‘psyche’ approach (which regards crime principally as a product of the human spirit and seeks to change criminal inclination and activity by policies of, for example, deterrence, incapacitation, and reform). The notion of situational crime reduction has been a particularly active area of research in recent years. But the idea that changes to the social and physical settings in which crime may occur can reduce its frequency or impact is far from uncontroversial. Volume III (‘Situational Crime Reduction’) assembles the best thinking in this area tackling, for example, ethical dilemmas about the impact of some reduction strategies on our freedom and privacy rights, as well as the difficult and profound implications that arise from the increasing extent to which crime reduction has become the de facto responsibility of private rather than state organizations. The final volume in the collection (‘Crime Prevention in Action’) gathers together the best cutting-edge work to highlight key examples of empirical crime reduction research in action. It includes research focusing on: the need to incentivize crime reduction to persuade more people to take responsibility for reducing a greater variety of crime; the effects of apparently subtle strategies (such as changes to street lighting); and anticipatory changes (whereby crime seems to reduce in advance of reduction initiatives). Volume IV also includes assessments of the future developments in the field. Crime Reduction is fully indexed and includes a comprehensive introduction, newly written by the editor, which places the collected material in its historical and intellectual context. An essential reference collection, it is destined to be valued by scholars, students, and practitioners as a vital one-stop research and pedagogic resource.
  • Security and Liberty: Restriction by Stealth

    Moss, Kate (Palgrave Macmillan, 2008)
    In considering the problems of legislating to reduce crime, this book highlights evidence of the veritable deluge of legislation which has reached the statute books over the last ten years and asks, what are the reasons for this? It provides an overview of some of the ways in which citizens are currently criminalized by legislation and gives specific examples of various other stealthy ways in which essential civil liberties have recently been restricted. Generating new insights on crime reduction this study asks, is legislating to reduce crime really a good idea, or are there better ways of doing it and if so, what are these and why are they better? Why might it be wrong to over-legislate and what sort of societies could be produced from a propensity to over-legislate? CONTENTS: * The Retreat from Liberty * Constitutional Origins of Erosion * The Culture of Control * Detention Without Trial * Football Banning Orders * Secure Borders * Implications for Crime Reduction and Criminology
  • International Response to the Money Laundering Threat

    Haynes, Andrew (City & Financial, 2003)
    A Practitioner's Guide to International Money Laundering Law and Regulation brings together a wealth of expertise to examine global regulatory developments. In over 25 chapters, it covers, amongst other areas; the US and UK response; "know your customer" issues; investigations; terrorist financing; and EU directives. In addition, the law and regulation in over 50 territories is also summarised.
  • The Law and Practice of International Banking, 2nd edition

    Penn, Graham; Haynes, Andrew (Sweet & Maxwell Ltd., 2009)
    The new edition of Law and Practice of International Banking is fully updated and revised to include new areas such as securitisation and regulatory aspects of derivatives, in addition to providing an authoritative guide to the latest developments in this rapidly evolving area of law. The complex underlying principles of the subject, along with emerging issues of major importance, will be fully covered, with the authors adopting a highly practical approach throughout. CONTENTS: * Governing the law * Jurisdiction * Sovereign risk * Term loans * Primary and secondary syndication * Events of default * Swaps * Standby and commercial letters of credit * Security * Guarantees * Exchange controls * Withholding taxes * Securitisation * Eurobonds * Capital adequacy * Taxation issues
  • The Wolfsberg Principles - self imposed codes of practice.

    Haynes, Andrew (Sweet & Maxwell Ltd., 2005)
    Comments on the Wolfsberg Principles on the suppression of terrorist financing. Discusses client acceptance, client identification, due diligence, the acceptance of numbered or alternate name accounts, risks associated with offshore jurisdictions, responsibility for oversight, situations requiring extra due diligence, the updating of client files, the identification of suspicious or unusual activities, monitoring programmes, the requirement for written control policies, reporting, training records, the role of financial institutions in the fight against terrorism, the importance of adherence to existing know your customer policies, high risk sectors and cooperation.
  • Money laundering: from failure to absurdity

    Haynes, Andrew (Emerald Group Publishing Limited, 2008)
    Purpose – The purpose of this paper is to examine the UK law relating to money laundering in the aftermath of the three statutory instruments that came into effect in December 2007. In particular the suitability and impact of the law is considered. Design/methodology/approach – The method adopted is to analyse the current content of the law and consider whether the approach utilised in its drafting will result in the aims behind the law being achieved. Findings – The result of this analysis is to conclude that the law as drafted is not designed in a way that can be effectively applied and that in addition the entire approach is flawed. In particular there are five key areas where problems arise: there is a requirement to report suspicion or knowledge of criminal offences or proposed terrorist acts but not other proposed criminal offences; the requirement to report only relates to information that comes into the reporter’s possession in the course of their trade or profession; the 2007 Regulations create requirements that many of those on whom they are imposed will not be able to effectively apply; the new s.333A appears to limit the offence of tipping off to the regulated sector but will not work as drafted; and in addition there are clear human rights issues associated with the overall regime. Originality/value – This original and topical paper explains the law as it now exists and provides analysis of its impact and undoubted failings.
  • Corporate collapse and the reform of boardroom structures - lessons from America?

    Griffin, Stephen (Sweet & Maxwell, 2003)
    Comments on the events leading to the collapse of the Enron corporation in the US. Highlights the responsibility for Enron's demise, focusing on the role of the auditors, the board and senior management. Examines key provisions of the Sarbanes-Oxley Act 2002, passed as a direct response to Enron, including the prohibitions on corporate activity, the regulation of auditors and the imposition of criminal penalties. Discusses the UK's response to the corporate scandals in the US, reviewing proposed reforms in the Higgs report relating to boardroom structures and the role of non-executive directors, and the scope of the revised Code on Corporate Governance, published in July 2003.
  • Enron and the End of Corporate Governance.

    Campbell, David; Griffin, Stephen (Oxford: Hart Publishing, 2006)
    This book - one in the four-volume set, Global Governance and the Quest for Justice - focuses on the role of corporations in an increasingly globalised world. Against the backcloth of perceived abuse of corporate power - alleged violations of human rights, degradation of the environment, abuse of labour, Enron-style financial scandals, and the like - the chapters in this collection examine the nature and function of the corporation as well as the way in which we should understand corporate governance and the power of transnational corporations. Central to the question is the issue of accountability, as well as the questions of social and environmental responsibility - here the authors ask whether corporations should be more accountable relative to the broader public interest, and suggest that public law approaches to accountability may offer a way forward. Consideration is also given to the most appropriate regulatory locus (local, regional, or international) and the most effective form of response to the deficit in corporate responsibility and the abuse of corporate power. For example, are transnational corporations most effectively regulated internationally (e.g., by the United Nations), regionally (e.g., by the EU or NAFTA) or locally (e.g., through stringent reporting requirements and implementation of triple bottom line standards)?
  • State Power and the War on Terror: A Comparative Analysis of the USA and UK

    Moran, Jonathan (Springer Verlag, 2005)
    This paper analyses the patterns and extent of state power in the war on terror. The paper argues that the War on Terror has seen important extensions in state power, which pose challenges not only for globalisation theorists and advocates of international law, but also theorists of the managerial or limited state, or those who see the state as over-determined in various ways by societal mechanisms or actors. Recent analyses, prompted by events in the War on Terror, have begun to focus on the extent of state power, rather than its perceived fundamental limits in late modern society. This reflects a need to analyse the politics and processes of national security. Having made this point, extensions in state power must be viewed in context and dynamically with regard to their effect on civil liberties, necessary to avoid a 'flattened' a-historical approach to state power and civil society. The problem of state power will be examined with regard to the UK and USA. The UK and the USA represent different constitutional arrangements, jurisdictions, legal and administrative intelligence and law enforcement powers, systems of accountability and political cultures. However as late modern liberal democracies they also display remarkable similarities and stand as illuminating examples to contrast structural patterns of state power, politics and civil society. They have also been identified as representing the evolution of the limited late modern state.
  • Construction Lawyers' Attitude and Experience with ADR

    Brooker, Penny (Sweet & Maxwell, 2002)
    Survey of construction lawyers on their experiences of ADR, particularly mediation, including mediation settlement rates, categories of disputes and parties involved in mediation, and factors involved in mediation failure or rejection.
  • Commercial and Construction ADR: Lawyers’ Attitudes and Experience

    Brooker, Penny; Lavers, Anthony (Sweet & Maxwell, 2001)
    Findings of large scale survey of solicitors and barristers specialising in commercial and construction fields on their familiarity with ADR, particularly mediation and their perception of its usefulness and effectiveness.
  • Commercial Lawyers' Attitudes and Experience with Mediation

    Brooker, Penny; Lavers, Anthony (Web Journal of Current Legal Issues, 2002)
    This paper considers the application of mediation for commercial disputes following the introduction of the Civil Procedure Rules (CPR), which encouraged the use of alternative dispute resolution (ADR). A report is given on a survey of lawyers practising in the UK commercial litigation field and the respondents' experience of using ADR. An analysis is made of the settlement outcomes reported for mediation and respondents' attitudes to the appropriate use of ADR for commercial-related disputes. Mediation, practically to the exclusion of any other method of ADR, is being employed in some sectors of commercial work and survey respondents are repeat-users of the process. The majority of mediations reported concerned breach of contract and professional negligence cases. Data suggests that the specific categorisation of a commercial disputes as (say) professional negligence, personal injury or breach of contact is unlikely to affect mediation achieving full settlement. Commercial respondents were of the opinion that mediation is suitable for a wide variety of commercial case-types but breach of contract, professional negligence, general negligence and debt cases were specifically perceived to be appropriate. Commercial respondents reported that the major determinants for mediation reaching a successful outcome are the attitude and expectation of the parties in taking part in good faith and their willingness to compromise.
  • The Future of Crime Reduction

    Moss, Kate (London: Routledge, 2005)
    This innovative and pioneering new book establishes links between crime reduction and the law, uniquely offering a detailed examination of how specific legislation and performance targets aid or undermine attempts at crime reduction. Providing a sustained analysis, this ground-breaking book considers the social policy, politics and legislation that surround and drive the crime reduction agenda. It analyzes: the creation of 'safe environments' through Town and Country Planning legislation the role of local authorities in crime reduction initiatives the nature of drug policy, paedophilia legislation and programs to control mental disorder crime. Bringing together the work of internationally renowned experts in this field, this book will prove very useful to students of criminology and sociology, as well as crime prevention and reduction practitioners, police officers and community safety partnership professionals. (Routledge)
  • Mediation Outcomes: Lawyers’ Experience with Mediation

    Brooker, Penny; Lavers, Anthony (Pepperdine University School of Law, Malibu, CA, 2005)
    This paper reports on the final phase of a three-year study into the role of lawyers in the development of Alternative Dispute Resolution (ADR) following the implementation of the Civil Procedure Rules in 1999 and draws comparisons between US and Canadian studies. The paper centres on the use of mediation, which is recognised as the pre-eminent ADR process in the UK. Data are analysed from 30 interviews with specialist commercial and construction-related lawyers who have utilised mediation in the dispute resolution process. Interviewees were selected from respondents to a national survey of lawyers specialising in commercial and construction-related practice. Whereas reaching settlement is typically regarded as the measure of success, this research focuses on other "mediation outcomes" experienced by solicitors and barristers, the majority of whom are repeat-users of the process. The data reveal that achieving settlement in a timely and cost-effective manner is among the chief advantages mediation has over litigation, but a number of other benefits can make the process an eligible option in dispute resolution. In particular, the process of mediation allows the parties to focus on or narrow the issues in dispute. Lawyer-interviewees also report tactical advantages from engaging in mediation. These range from providing the opportunity to examine the strengths and weaknesses of the case to testing witnesses and evidence. The data suggest lawyers are developing new practices in mediation, such as proposing the process in order to provide proof to the courts of willingness to compromise or participating in mediation in order to send messages to the opposition. Mediator-interviewees report a trend in mediation where cases are more difficult to settle and the participants more cognisant of mediation tactics.
  • Investigation of Evaluative and Facilitative Approaches to Construction Mediation

    Brooker, Penny (Emerald Group Publishing Limited, 2007)
    Purpose – The paper seeks to examine the debate on mediator style and provide empirical evidence on mediator orientation, which has implications for party choice and the development of professional standards for construction mediators in the UK. Design/methodology/approach – This paper analyses the theoretical arguments and distinctions in mediator style and assesses the available evidence relating to the utilisation of evaluative or facilitative mediator approaches in the UK and US construction industry. The paper reports on data from qualitative interviews with construction lawyers experienced in using mediation in the UK to assess the level of evaluative conduct experienced. Findings – The findings suggest that interviewees had experienced a mix of evaluative and facilitative interventions by mediators. The data support the contention that construction mediation in the UK mirrors the experience of the USA and is becoming “lawyer-driven” and adversarial, with mediators utilising evaluative techniques which some members of the legal profession prefer. Research limitations/implications – The qualitative data are based on a small sample of mediation users in the UK construction industry. However, interviewees were selected from respondents to a randomly conducted large-scale postal survey of commercial and construction lawyers. All interviewees were repeat users of the process and all but one had received training in mediation or are practising lawyer-mediators. Practical implications – The data provide evidence of different mediator techniques currently utilised in the UK construction industry and the practices of lawyers in the mediation process. The findings have implications for party choice and should inform the development of professional standards in construction mediation practice. Originality/value – The paper provides original data on the practices of mediators and lawyers in construction mediation.
  • Electronic delivery in law: what difference does it make to results?

    Migdal, Stephen; Cartwright, Martin J. (Web Journal of Current Legal Issues, 2000)
    This article details research which attempts to assess what effect electronic delivery of law modules has on actual student assessment performance. The authors reviewed the assessment results of students who had taken both conventionally and electronically delivered modules and compared and contrasted individual student performances in all the modules studied by them in a particular semester. As far as the authors' researches were able to ascertain this was a relatively unique piece of research as far as legal study is concerned. We found that weaker students (those who might ordinarily fail or scrape a bare pass) were achieving a mark some 10% higher than that achieved in the conventionally delivered modules; pushing those students into the lower second category - the assessment criteria for such classification demanding evidence of deep as opposed to surface learning. However there was little or no difference in the marks achieved by upper second quality students. The authors acknowledge that many factors affect the quality of assessment performance and that, whilst the article addresses some of the variables, any specific conclusions based on results alone are open to question. Furthermore, we accept the limitations of a small and narrow statistical sample and that therefore this can only be a survey rather than a controlled experiment. Nevertheless we believe that as part of the debate on the role of C & IT it has a useful role to play. Inevitably an article such as this trespasses on many pedagogical issues deserving debate which goes beyond the objectives of this discussion.
  • Fixed and Floating Charges - A Revelation

    Walton, Peter; Gregory, Roger (Informa Legal Publishing (UK), 2001)
    Reasons for development of law on creation of floating charges, effect of early cases, bills of sale legislation, construction of floating charges, role of hypotheca and position and use of floating charges in commercial world today. (LegaL Journals Index)

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