Maintaining a fair balance between individuals’ interests and the public interest is arguably believed to be the most effective approach in serving the ultimate objective of copyright: to promote social, economic and cultural development for the benefit of both rightsholders and the public at large. Through this balanced approach, creativity can be maximised and thrive better than by tilting towards one or the other. In copyright law, such balance is reflected by the way in which the short-term grant of exclusive rights respects the long-term public interest represented by limitations and exceptions to copyright. Despite an unclear and non-uniform definition and scope, the importance of the public interest has been implicitly and explicitly recognised through disparate forms of safeguards in different jurisdictions. However, the last few decades have seen a rapid development of information technologies which, in turn, has contributed to an unparalleled legislative drive at international level towards overprotecting the interests of rightsholders. This has then left the public interest under-protected and now constitutes an imbalance of copyright. This thesis therefore examines legislative intervention into the international copyright regime in an attempt to ensure that the public interest is uniformly and mandatorily safeguarded at international level. In particular, it strives to establish an overarching public interest defence capable of protecting certain aspects of public values embedded in copyright works. In achieving this, the thesis examines the scope of the defence, what it should entail, and what aspects are to be taken into account in the course of formulating and giving effect to the defence. The substantive chapters investigate the public policy grounds, the right to freedom of expression and the international three-step test, i.e. the roles they play in shaping the latitude and operations of the defence, respectively. Finally, the thesis also evaluates different ways in which the defence can be incorporated into the international copyright regime in order to effectively counterbalance the rightsholder-centric tendency and restore the balance of copyright.

This research investigates the experiences and expectations of working-class law students at a ‘new’ university. It critically examines the influence of cultural, social, linguistic and academic capital on working-class law students and their chances of success in the legal labour market. Statistics show that the number of working-class students beginning a legal education continues to grow despite the rising cost of qualification; continuing class prejudice and decline in number of training contracts and pupillages. With supply consistently exceeding demand in a middle-class dominated legal labour market, working-class students face ongoing and increasing difficulties in negotiating the barriers to entry, often with very little chance of success. This thesis presents the findings from a case study employing semi – structured interviews and focus groups used to collect qualitative data. Bourdieu’s theories on class, field and habitus are used to illuminate the findings and the data. Students describe their thoughts and experiences about their legal education and their attempts to enter the legal labour market; about why they chose to study law and why Middlebridge was their preferred university. The data suggests that the difficulties they face become apparent and their expectations begin to change as they progress through their legal education. However, instead of attempting to overcome the barriers they face, in the main, participants adjusted their sights downwards and were prepared to settle for employment at the lower-end of the legal labour market. This study suggests that universities like Middlebridge may, perhaps inadvertently, encourage inequality in law because those who enter with the lowest stock of capital benefit the least. Higher education masks how power within the legal profession is distributed, instead allowing students to believe it is based upon merit and ability.

The Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) was conceived of as the Court’s gatekeeper and empowered in the Rome Statute to provide an essential counterbalance to the significant discretionary powers granted to the Prosecutor. This thesis analyses in detail the PTC’s powers at the different stages of the Court’s proceedings in which it is called to intervene – ie pre-investigation, investigation and pre-trial stages – and argues that, in general terms and save some limitations, the PTC has the necessary tools to carry out its function. In particular, the PTC has been empowered to prevent possible abuses of power and shield the Prosecutor from external pressures through the judicial review of his most critical discretionary decisions. By way of that judicial control, the PTC is meant to examine the rationale behind the Prosecutor’s decisions in order to guarantee that the exercise of discretion is not abusive or the result of improper political pressures. This is necessary to safeguard the legitimacy of the institution as a whole and to protect the rights of those that can be affected by the Court’s investigations and prosecutions. However, a systematic evaluation of the way in which these powers have been applied reveals that the PTC’s judges have adopted a rather cautious approach to their role, showing some reluctance to firmly scrutinise the Prosecutor’s exercise of discretion. As a result of the Court’s inherent limitations and the political climate in which it operates, there is a concrete risk that external actors may try to politicise the role of the Court, exerting political pressures on the Prosecutor. The adoption of a more proactive and firm role by the PTC will not only encourage a more transparent decision-making process by the Prosecutor, but will also urge cooperation and genuine investigations and prosecutions at the national level, therefore minimising the risk of the Court’s political instrumentalisation. Accordingly, this thesis argues that, for as long as the PTC boldly embraces its full powers, the ICC will function smoothly and strengthen its reputation as a fair and impartial means by which to obtain international criminal justice.

Requests for battlefield euthanasia have, no doubt, occurred on battlefields as long as there have been battlefields. When men have taken up arms against one another, for whatever reason, there have always been those wounded who do not die immediately, but clearly cannot live for long, either because of their wounds or their circumstances. This can generate the desire to hasten their inevitable death, by both the wounded soldier as well as their comrades. These situations have probably occurred throughout history.’ Mercy killings, those lethal actions carried out to relieve suffering, enacted by soldiers upon wounded enemy combatants during and after combat have been evidenced since the earliest recordings of armed conflict. An action which was taken from necessity due to inadequate medical knowledge and resources and also because of the existence of a less humane, but perhaps more practical society, are now considered as a criminal act. However, the act is often carried out from compassion and a feeling of sympathy towards the victim. Meanwhile, public values, the common law and legislation dealing with euthanasia have all developed in the domestic civilian setting. Mercy killings have traditionally been dealt with in a confusing manner by the courts, using ill-fitting doctrines such as diminished responsibility to alleviate the criminal stigma placed upon the defendant. In other situations the application of the law has created uncertainty concerning the demarcation between whether an act constitutes murder or manslaughter. This uncertainty is compounded when the law developed to deal with civilian situations is juxtaposed on a mercy killing carried out by a soldier on another combatant in a battlefield setting. These situations present circumstances beyond the comprehension of civil domestic law. To implement it correctly requires a strained alignment between the pressures facing the soldier in combat and the pressures facing the defendant in peacetime, and there is a high likelihood that by doing so an injustice shall be served to the soldier and the victim. The potential trial processes faced by the soldier who has carried out a battlefield coup de grace are also questionable. To try the soldier in a civilian court is to place the deliberation of his actions into the hands of those who are not his military or cultural peers and who will judge his actions in accordance with a belief system contrary to those the defendant is indoctrinated with through his military training. However, implementing civil criminal law in a court martial alongside military discipline offences for crimes which represent serious operational misconduct, creates conflict between which values should be prioritised. The values of military discipline are in competition with the values of the criminal law. The court martial also carries with it the aura of unfairness due to its inherent bias, and there are concerns over its partiality. However, it also offers potentially the best place for the soldier to face trial because the case is deliberated upon by a Board of military personnel, his peers, who understand the unique culture of the soldier. By comparing the professional soldier with medical professionals, who are also involved with end of life decision making a better sense of the ‘wrongness’ of the action can be found. In the medical context consent can be used to legitimise many actions which may lead to death, and even without it the doctor may act in the patient’s best interests in a manner which avoids liability but results in death. The practice of double effect allows a physician to deliver pain relief even though there is a foreseeable consequence of death. The soldier’s actions exhibit many of the same motives but are never legally justified. The comparison serves to change the perception of the action, from merely legally wrong to morally legitimate. Although difficulties exist in arguing that mercy killing actions should be made legal, the wider consideration of the influences and behaviours can show that such actions can be morally legitimate and that it is not just to punish the soldier too harshly, nor is it just to hold him to account to laws which ill-fit the circumstances, be they domestic criminal laws, international criminal laws or military offence.

The dynamics of private life have changed along with the vast advancements in 21st Century communications technology. Private conversations no longer simply take place in the citizens’ home or through using a landline telephone, but rather online through the Internet, social media and through the ever-growing list of chat applications available on the smartphone that allows encryption. However, what often follows the legitimate use of technological advancements is criminal, or in this case terrorist exploitation. In the digital age it has become increasingly easy for terrorist groups to communicate their propaganda and for individual terrorists to communicate freely. This has served to create an investigatory capabilities gap thereby increasing the pressures on UK policing and security agencies’, in fulfilling their task of protecting national security and protecting the citizens’ right to life. In response, the UK and the European Union (EU) have attempted to close the capabilities gap and thereby ensure collective security, by enacting new laws allowing the law enforcement agencies’ to monitor electronic communications. The UK Government has recently enacted the Investigatory Powers Act 2016 (IPA) that introduces and preserves the ability to bulk collect, and retain electronic communications data, and to attain the operators’ assistance in decryption. Although the IPA attempts to take a human rights approach, the main contentious elements in the Act are those in relation to the authorities’ capabilities to intercept electronic communications data on mass, and to retain such data. Specifically, concerns currently surround the introduction of ‘backdoors’ into encrypted online services, and bulk interception and equipment interference warrants, and bulk personal data sets, all of which serve to weaken the security and individual data protection and privacy rights of, potentially, the entire population. The Court of Justice of the European Union (CJEU) has been the most influential judicial body in terms of individual data protection, and thereby on the UK’s law making process, through its key judgements in Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and others, and the conjoined case of Kärntner Landesregierung, Michael Seitlinger, Christof Tschohl and others (Digital Rights Ireland). The CJEU has done this by asserting the EU’s constitutional and legal prowess in protecting data protection, such as Article 8 of the Charter of Fundamental Rights and byway of two directives, namely the Data Protection Directive in 1995 and the e-Privacy Directive in 2002. In order to close the capabilities gap ensuring national security, the UK Government must ensure the law endures by safeguarding the cohesiveness with the jurisprudence of the CJEU and the European Court of Human Rights (ECtHR). The courts do focus on different elements, built around the Conventional rights, with the CJEU focused on data protection and the ECtHR on Article 8 right to privacy. To solve the balance between individual privacy and collective security, a human rights focus is required with emphasis placed on the practical reality that one cannot assert privacy rights, if one’s right to life is not fully protected in the first place. This focus must re-forge the UK’s counterterrorism legal structure. Taken in conjunction with the UK’s already broadly worded counterterrorism legal framework, particularly the lack of a freedom fighter exclusion within the legal definition of terrorism, the consequence is to almost criminalise any expression of a view that the armed resistance to a brutal or repressive anti-democratic regime, could in certain circumstances be justifiable, even where such resistance is directed away from non-combatant casualties’. Although the current counterterrorism structure is broad, the UK and the EU must police the Internet and remove the safe places used by criminals and terrorists. The IPA fashions a way within which to achieve this, but because it can be aimed at the whole population, subject to authorisation safeguards, and following historical case law dealing with blanket policies that effect the innocent, it is likely to receive continual CJEU and ECtHR judicial scrutiny. Post the UK’s exit from the EU however, the CJEU may become less important leaving the ECtHR to conduct the analysis. At present, the UK must follow CJEU rulings when the matter concerns EU law, whereas ECtHR decisions are merely recommendatory. The thesis found that overall, the balance between collective security and individual data privacy rights in the UK are fairly stable because of the role and importance of judicial review; judicial independence, and the over-arching scrutiny provided by commissioners and parliamentary committees. It is further argued that a blanket approach to retaining electronic communications data is necessary in finding the terrorist in the ever growing haystacks, because sometimes privacy rights and data protection must be curtailed to ensure the state can protect citizens’ rights to life.

This thesis examines the extent to which the criminal law is a suitable tool for the regulation of the sexual behaviour of ‘older children’ and identifies the most appropriate approach for that involvement to take. The research takes place in the context of the current approach in Scotland, whereby all consensual sexual intercourse and oro-genital sexual activity between two ‘older children’, defined as those aged 13 to 15, is criminalised under section 37 of the Sexual Offences (Scotland) Act 2009. The nature of this legislation is described in detail in Part One of the thesis, and then contextualised against the relatively widespread occurrence of these activities amongst older children and the very limited number of prosecutions under the provision in practice. The question of whether, on balance, the current approach is appropriate is addressed over Parts Two and Three of the thesis. In making this assessment, the thesis integrates relevant public health research and aspects of research into adolescent psychology and neurological development, with the principles that should normatively inform criminalisation decisions and doctrinal legal discussions. Overall, it is argued that, while there are good public policy reasons to encourage older children to delay engaging in sexual intercourse and oro-genital sexual activity, the current blanket approach taken by the criminal law in Scotland is overly broad. Part Four of the thesis makes an extensive comparative analysis of the legal approaches taken to consensual adolescent sexual intercourse in other common law jurisdictions, to identify possible approaches that Scotland might follow in preference to the current law. These approaches are drawn upon to advocate a more refined approach in the substantive law in Scotland that criminalises consensual sexual intercourse and oro-genital sexual activity involving older children only where there is a substantial age difference between the participants or where there is otherwise evidence of exploitation. The thesis argues that the refined approach would safeguard adolescents against exploitation without automatically criminalising significant numbers of adolescents for their consensual sexual behaviour.

It is an axiom of the conflict of laws that one state will not enforce the revenue, penal, or ‘other public’ laws of another. This thesis shall criticise this position, arguing that these exclusionary principles should be replaced with a general principle of enforceability, subject to the control of public policy. It shall begin by sketching the general landscape of the exclusion of foreign law in Anglo-Scots international private law. Thereafter, a detailed account shall be given – for each of the revenue, penal, and ‘other public’ law rules – of the historical development of those exclusions, and their present scope of operation. This exposition provides a foundation for a critical examination of those rules.

No description available.

Purpose: The purpose of this thesis is threefold. First, it carries out an assessment on the extent to which takeovers impact on the interests of employees, suppliers and senior management. Second, the primacy enjoyed by shareholders during takeovers is subject to scrutiny to determine whether their decision making powers can be rightly exercised to the detriment of the target company and its non-shareholding stakeholders post-takeover. This would determine whether calls to reform Rule 21 of the Takeover Code 2013 (the board neutrality rule) are justified. Third, in light of the empirical evidence carried out and findings from two case studies (Corus Steel and Cadbury), two reform proposals (the board-centric model and disenfranchisement of short-term shareholders’ voting rights) are critically examined. The aim is to find the most appropriate way of reforming the board neutrality rule, taking into consideration the opinions of the business community and academics, in order to offer more protection to employees, senior management and creditors’ interests during takeovers. Design/Methodology/Approach: This is a legal study that encompasses theoretical and empirical analysis of takeovers and their relationship with society and the state in a rapidly changing social and commercial landscape. It also assesses the experience of those affected by the process of law, for example employees who may find themselves disadvantaged by the operation of shareholder primacy during takeovers. Legal research has its theoretical and methodological base primarily in social sciences and this is why methodologies used in this study such as case study analysis and theoretical conceptualisations are mainly empirical and social-theoretical. Doctrinal analysis is also relied on when analysing case law and forms part of the wider discussion. Case studies on two formerly British companies (Corus Steel and Cadbury) which were taken over by foreign companies are also used. A case study methodology was selected, after considering all alternative methods, because it traces an event from its initiation until its completion and even beyond, in the process mapping all the important developments. For both Cadbury and Corus, the method helped to highlight how the takeovers impacted on the interests of employees, senior management and suppliers, and the predatory role played by arbitrageurs (short-term investors) during the offer period. Findings: Based on the findings from Cadbury and Corus case studies and the study as a whole, takeovers have an adverse impact on the interests of employees, senior management and suppliers while the target company’s shareholders stand to earn a premium on their shares. A sign of a takeover pulls arbitrageurs to buy the target company’s shares, no matter how inflated, in hope of a takeover deal. Since the decision making powers during takeovers lie in the hands of target company shareholders, they are unlikely to turn down a premium offer, regardless of the impact it may have on the interests of non-shareholding stakeholders such as employees. Both existing empirical studies and case studies on Cadbury and Corus showed that takeovers have a detrimental effect on the interests of non-shareholding stakeholders post-takeover. In light of these findings, two alternative regulatory models were considered: (1) disenfranchisement of short-term shareholders’ voting rights; and (2) adoption of a board-centric model of takeover regulation such as the Delaware model. After critically examining the two models, there was insufficient evidence to justify a fundamental change of UK takeover regulation to either model. A more appropriate solution was to give incentives to shareholders to think and act long-term such as strengthening the stewardship responsibilities under the Stewardship Code 2012. Originality/Value: This study contributes to a growing body of research on shareholder primacy under takeover law by providing empirical evidence on the relationship between takeovers and the impact on the interests of non-shareholding stakeholders. It also examines the role played by short-term shareholders in exercising their decision making powers during the offer period and considers specific reform proposals. This study aims to provoke legal reform that would lead to more protection for non-shareholding stakeholders during takeovers. Thus, this study will inform the academic and business community as well as policy makers in the UK on the impact of takeovers on company constituents post-takeover and the way forward in protecting non-shareholding stakeholders’ interests from potentially harmful takeovers.

The story of indigenous peoples’ knowledge systems, also known as indigenous knowledge (hereafter IK), is a complex one tangled with different and sometimes conflicting interests, values, and interpretations from a variety of disciplines, or specialized fields. A number of international treaty and trade agreements that want to ‘harness’ IK also turned it into an object of global governance, as this PhD study argues. This study also argues that the well-being of IK has gradually emerged as a global agenda for sustainable development and intergenerational justice, which constitute the defining characteristics of contemporary discourse of heritage. Consequently, IK issues and debates have become more versatile and multifaceted with a widening scope and mounting stakes. This is a sociological and legal study of knowledge that analyses the epistemological struggle resulting from different understandings of the nature and purpose of IK, which has causal relationship with the inadequacies of the governing regimes documented in this study. This study argues that such struggle and inadequacy form the core problem for IK governance. Furthermore, this study takes a novel approach guided by indigenous peoples’ epistemology, which represents ties between ecology, landscape, and people in a web of connections, to argue that IK is a cross-cutting subject and a form of emplaced knowledge. Hence it is not simply a property issue or debate as most literature tends to focus on. This study further argues that what constitutes the cornerstone of IK claims by indigenous peoples is essentially biocultural diversity that nurtured and sustained IK as well as IK-holder communities as distinct peoples. Through an interdisciplinary approach of synergy and synthesis, this study developed a number of original ideas and frameworks to analyse this complex story of IK. By doing so, this study shows how IK is a challenging subject that is inevitably political; it is also tangled with inherently heterogenetic and incoherent regimes of governance, from intellectual property and trade to environmental governance and development to natural and cultural heritage and human rights. This study takes these regimes as sites of inquiry in the tradition of critical theory to further unpack and problematize the development imperative and the private-property-based system exercised by these regimes. Finally, this study concludes that IK governance can make or break vulnerable groups like indigenous peoples to a point of prosperity or deeper poverty and extinction. Therefore, it requires particular care with an integrated approach. This study aims to fill an important gap in the literature with recommendations for future policy and research.