This chapter argues that relevant evidence must be excluded on the ground of public policy on certain conditions. It explores two of these conditions: when the evidence concerns certain matters of public interest considered to be more important than the full disclosure of facts to the court, and when it relates to miscellaneous matters connected with litigation. The chapter also discusses evidence that has been illegally obtained, though this topic is not usually covered under the umbrella of public policy. Although there is no comparably strict general exclusionary rule, it is increasingly the case that the courts recognize the existence of an exclusionary discretion. This is governed in part by weighing the public interest in the conviction of guilty criminals against the public interest in the preservation of basic civil liberties.
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M P Furmston
This chapter focuses on contracts prohibited by statute or contracts deemed illegal at common law on grounds of public policy, and discusses the consequences of illegality and proof of illegality.
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This chapter considers the liability in negligence of public authorities. It commences by examining typical features of public authorities, including their statutory and public dimensions. It then considers the tests that courts have used to determine whether they can accept jurisdiction to hear a case involving a public authority. Finally, the chapter turns to the application of the three-stage test for duty in cases of public authorities, paying special attention to policy reasons for excluding duties of care.
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This chapter examines the express powers given to the Member States by Union law to prevent or restrict migrants from enjoying in full the rights enjoyed by workers, the self-employed, providers/receivers of services, and of citizens in the host state. The express derogations laid down by the Treaty fall into two categories: general derogations (public policy, public security, and public health); and specific derogations (employment in the public service). It also examines the exceptions found in the Citizens’ Rights Directive 2004/38.
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This chapter examines the express powers given to the Member States by Union law to prevent or restrict migrants from enjoying in full the rights enjoyed by workers, the self-employed, providers/receivers of services, and of citizens in the host State. The express derogations laid down by the Treaty fall into two categories: general derogations (public policy, public security, and public health); and specific derogations (employment in the public service). It also examines the exceptions found in the Citizens’ Rights Directive 2004/38
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Jack Beatson, Andrew Burrows, and John Cartwright
This chapter considers what counts as illegality and the effect of illegality on a contract (and consequent restitution). The approach of the Courts to illegality has been transformed for the better, and simplified, by the Supreme Court in Patel v Mirza in 2016. Illegal conduct, tainting a contract, can vary widely from serious crimes (eg murder) to relatively minor crimes (eg breach of licensing requirements) through to civil wrongs and to conduct that does not comprise a wrong but is contrary to public policy. As regards the effect of illegality, where a statute does not deal with this, the common law approach is now to apply a range of factors. A final section of the chapter examines contracts in restraint of trade.
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Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Van Duyn v Home Office (Case 41/74), EU:C:1974:133, [1974] ECR 1337, 4 December 1974. The document also includes supporting commentary from author Noreen O’Meara.
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Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Van Duyn v Home Office (Case 41/74), EU:C:1974:133, [1974] ECR 1337, 4 December 1974. The document also includes supporting commentary from author Noreen O’Meara.
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Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Van Duyn v Home Office (Case 41/74), EU:C:1974:133, [1974] ECR 1337, 4 December 1974. The document also includes supporting commentary from author Noreen O'Meara.
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This chapter describes some policy limits in the law of equity. The rule against perpetuities prevents owners tying their property up outside of the market for too long a period, otherwise known as the ‘perpetuity period’. The rules of perpetuity also account for accumulations and inalienability. Meanwhile, conditional and determinable interests, where the conditions are designed to influence the beneficiaries’ behaviour in a way that is contrary to public policy, are also restricted. Legislation also provides that trusts may be set aside if they are established with the object of defrauding the creditors of the settlor.
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This chapter describes some policy limits in the law of equity. The rule against perpetuities prevents owners tying their property up outside of the market for too long a period, otherwise known as the ‘perpetuity period’. The rules of perpetuity also account for accumulations and inalienability. Meanwhile, conditional and determinable interests, where the conditions are designed to influence the beneficiaries’ behaviour in a way that is contrary to public policy, are also restricted. Legislation also provides that trusts may be set aside if they are established with the object of defrauding the creditors of the settlor.
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This chapter details the relatively few legal controls and restrictions on partnerships and partnership agreements, together with aspects of contract law and litigation issues. In terms of contract law, the issues are capacity to become a partner, illegality and partnerships, and restraint of trade clauses in partnership agreements. With regard to the latter, the issues are validity and severance of such clauses as a matter of public policy, and enforcement. Medical and solicitors' partnerships are specifically considered in that context. The controls on partnership and business names in the Companies Act 2006 are set out, followed by the possibility of passing-off actions in tort. Finally, the position of partnerships, not being legal persons, as either complainants or defendants is considered.
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This chapter focuses on the negligence liability of public authorities. It discusses how negligence actions against public bodies may have both public and private law dimensions. The discussion of the public law dimension focuses on the mechanisms that have been employed in response to concerns about the political nature of some public authority decisions, and the fact that those decisions frequently involve the balancing of social or economic considerations, and the interests of different sections of the public. The discussion of the private law dimension of negligence actions against public bodies considers policy reasons for limiting the liability of public bodies and statutory responsibilities as a source of affirmative common law duties. The chapter concludes with a consideration of proposals for reform of the law in this area.
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This chapter explores how the creation of trusts is influenced by special considerations of public policy, focusing on charity that is beneficial to the public as opposed to illegality. Charity will render a purpose trust valid that the law of trusts would otherwise consider to be void. In contrast, illegality will sometimes render an interest or transaction void or unenforceable that the law of trusts and gifts would generally consider to be valid. After considering the creation of charitable trusts, the chapter also discusses charitable purposes and the public benefit as well as the administration of charitable trusts, before concluding by analysing their variation in accordance with the ‘cy-près’ doctrine.
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This chapter examines the European Union (EU) law concerning the free movement of persons and the limitations of this right on grounds of public health, public security, or public policy, including the ‘rule of reason’ and expulsion, refusal of entry or an entry ban due to criminal offences or other personal conduct. It analyses the relationship between the Citizens’ Rights Directive (CRD) (Directive 2004/38/EC) and its relationship with Treaty provisions. It considers the substantive scope of the derogation provisions and the procedural guarantees in the CRD applicable to EU citizens and their family members facing expulsion, refusal of entry or entry bans.
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13. Public Criminology:
Theory and Policy
This chapter examines the implications of theories of crime and deviance for public policy and practice. It first considers why criminologists devote few of their resources to political activity in general and the making of public policy in particular, with emphasis on the issues of role-definition, translatability, and salience. It then turns to some theoretical perspectives about the relationship between deviance and social policy, focusing on the work of the Chicago School of Sociology as well as functionalist theories, anomie theory, and the projects that put forward a theory based on a detailed analysis of the links between crime, delinquency, and social structure. It also looks at the work of Thomas Mathiesen in the field of a critical criminological penal reform project that advocates abolitionism. The chapter concludes with a discussion of public criminology.
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All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter examines the provision of health care services. It first considers the way in which NHS services are commissioned. Secondly, it covers the issue of resource allocation or rationing. It examines different rationing strategies, and considers the role of the National Institute of Health and Care Excellence, and the use of judicial review to challenge funding decisions. Finally, it examines public health law, and role of the state in encouraging healthy behaviour and addressing health inequalities.
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This chapter begins by discussing the nature of punishment before focusing on key questions in penal policy including justice, risk, and human rights. It also considers the principal factors that shape the development of penal policy, notably political imperatives, economic influences, and penological and criminological principles, as well as public opinion and the media, which have become much more influential since the early 1990s. Recent penal policy developments are also discussed to highlight significant trends and problems. The chapter concludes by focusing on the governance of sex offenders and providing a case study and discussion questions for reflection on the issues.
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This chapter examines the absolute grounds for refusal of trade marks from registrability, which are found in s. 3 of the Trade Marks Act 1994 (TMA). The chapter lists objections to registrability based on the mark's own characteristics. To be refused registration, the mark should possess some innate quality which prevents registration. For instance, the mark applied for may be descriptive, generic, or it may lack distinctiveness. Marks that go against public policy or marks that are immoral will also be refused protection. The TMA also contains a number of negative objections in contrast to its predecessor, which required an applicant to show that the mark applied for was positively entitled to registration.
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This chapter examines the structure of the National Health Service (NHS) and some of the key issues facing those dealing with its management. Topics discussed include policymaking and central planning in the NHS; quality control; commissioning and planning services; the provision of services; structural issues; rationing; health inequalities; the General Medical Council; and efforts to control infectious diseases and prevent illness. The chapter also discusses the complex issue of the rationing of healthcare resources. The case law on the topic is set out and there is a consideration of the ethical issues which are raised when decisions need to be made about who gets medical treatment.
