Around 90% of criminal convictions in England & Wales are based on guilty pleas. The criminal justice process places deliberate pressures on defendants to plead guilty, undermining the traditional account of the guilty plea as a voluntary and reliable confession. However, despite the acknowledged risk of wrongful conviction, appeal against guilty plea conviction is limited. Through empirical research and theoretical analysis, this thesis examines how the appeal courts and the Criminal Cases Review Commission (CCRC) respond to challenges to guilty plea convictions and the accounts of the guilty plea they provide to justify these responses. This entails the analysis of appellate caselaw, alongside an examination of CCRC files in guilty plea cases, an observational study of defence plea advice and hearings, and interviews with lawyers and CCRC staff in order to assess whether the accounts offered by the courts and the CCRC have any foundation in practice. The research reveals that the criminal justice system, as designed and operated, prioritises efficiency over fairness and accuracy in its treatment of guilty pleas (reflecting Nobles and Schiff's analysis of tragic choices in the system). Despite the consequent risk of injustice, the appeal courts resist challenges to guilty plea convictions, relying on unsupportable accounts of the guilty plea as a confession, and of defence lawyers as sheltering defendants from plea pressures. In turn, the CCRC's approach to such cases is characterised by confusion and, ultimately, the prioritisation of efficiency and finality. In response, the thesis proposes an account of the guilty plea as the defendant's prediction of the likely trial outcome (the 'defendant-assessed verdict'). While requiring procedural changes to allow defendants to be supported and informed in assessing the case, this account could provide a justification for guilty plea convictions and offer a framework for assessing challenges to such convictions in the future.

Advance decisions to refuse medical treatment (“ADRTs”) have been recognised in English law through a series of cases which arose at the end of the Twentieth Century and subsequently by the Mental Capacity Act 2005. ADRTs allow adults, with the requisite mental capacity, to refuse forms of medical treatment that they anticipate being provided with at a time when they have lost mental capacity in respect of the anticipated treatment. The most frequently advanced argument for the recognition of these instruments is to respect and extend personal autonomy and/or self-determination. However, this thesis treats that particular normative ground as but one among a number of factors which have been crucial to the emergence of ADRTs. It is argued that the advancement in medical capabilities for prolonging life in its final stages is a sine qua non of ADRTs in practical terms. The demographic and financial pressures in which end-of-life care is provided add impetus to the argument for the recognition of ADRTs. However, it is suggested that the political environment in which ADRTs have emerged has also been of fundamental significance to their recognition in law. Using Michel Foucault’s theory of governmentality it will be shown ADRTs have been developed within advanced liberal programmes of government, in response to the inability of the traditional approaches of those forms of government to govern individuals who lack capacity at the end of life. The employment of this theory provides a novel perspective on the debates which have raged in this area of law and bioethics, allowing for a focus on the population, as well as the individual, and a focus on practices rather than on the outcomes.

This thesis studies the participation of bereaved families in inquests following deaths in custody in England and Wales. When a member of their family dies in custody, a family will usually want to understand when, where and how they died. When there is a possibility of negligence or culpability on the part of the State, it is even more important for a family to understand the circumstances surrounding the death. In those situations, it is also important for mistakes to be identified so that lessons may be learned and the State is held to account for its actions. Often preventing further deaths is as vital to the family as getting answers for their own peace of mind. An inquest is inquisitorial and the role of the coroner is to find the facts; so it can be argued that the participation of the family is primarily for their own closure and does not necessarily benefit the overall effectiveness of the investigation. This thesis shows that effective participation of a family (which includes ensuring they are legally represented and have access to all evidence) is vital to achieving accountability, as well as increasing the legitimacy of the process. The legal framework governing family access to an Article 2 investigation is considered, as well as the relevance of procedural justice theory for such investigations. Individuals with personal experience of inquests into deaths in custody including legal representatives, coroners, police officers and bereaved family members were interviewed to gather their views about the impact the participation of a bereaved family has on the effectiveness of the process. Perspectives described by these interviews are analysed within both legal and theoretical frameworks to take forward an understanding of why family participation in complex inquests is so important.

The most important high technology intellectual property (IP) rights in terms of innovation are patents,a form of intangible property right. Even though these corporate assets drive 21st century technological innovation, patent-backed lending to UK SMEs remains underdeveloped. One reason is that the value of their internally generated patents is under-reported in traditional financial statements due to the application of International Accounting Standard 38 Intangibles. The accounting problem is exacerbated by the fact that SMEs are exempt from company law requirements to present a directors’ Strategic Report in their annual return to Companies House. The astonishing lack of quantitative and qualitative public information about corporate IP assets makes it difficult to assess their strategic value (“the patent value story”) and directors’ stewardship of those assets. While this may restrict access to debt finance, this thesis argues there is a wider corporate governance issue. More relevant, accurate and timely corporate IP information (mostly known to internal management) is needed to triangulate intangibles financial data through cross verification with corporate narrative disclosure. The multidisciplinary insights into the transparency corporate problem and how directors fulfil existing obligations to provide “true and fair” IP information under UK law provide an academic audience with a deeper level of legal analysis concerning the intersection between: (1) the patent ecosystem; (2) accounting for intangibles; (3) patent-backed debt finance; and (3) corporate disclosure. Knowledge is advanced with an original business triage style Essential, Desirable & Optional narrative corporate disclosure model.

In order to investigate students’ success and experience at university, this thesis compared students’ access to knowledge through the curriculum, teaching and learning (pedagogy) in Law undergraduate degrees at two UK universities of different status: a higher status ‘pre-1992’ Russell Group University (‘Global’) and a lower status ‘post-1992’ university, which is a member of the Million + Group (‘Local’). Lower-status universities recruit more students from unrepresented groups: students from ethnic minorities; those with disabilities; those who have been in local authority care; mature students; and, students from lower socio-economic groups. These students are often judged to be at a further disadvantage because their universities’ positions in higher education league tables gives the impression that the universities they are attending offer a lower standard of education than the higher status universities. This research focuses upon students’ experiences, at different universities, during their degree and, as such, contributes to the limited body of research about factors which affect student retention and success in higher education. This research built on a three-year ESRC-funded research project entitled ‘Pedagogic Quality and Inequality in University First Degrees’ (2008-2012) which used a theoretical framework drawn from the sociologist Basil Bernstein to analyse curriculum and pedagogy in sociology-related social science disciplines in four universities in different positions in higher education league tables. This study employed the same broad conceptual framework and some of the methods of the ESRC project for a smaller-scale study exploring how access to knowledge plays out in the discipline of law in two different status universities. The research presented here was a longitudinal comparative case study of an undergraduate Law degree. At each university, curriculum documents for seven core modules were analysed to highlight the similarities and differences in curriculum content and pedagogical processes; two tutorial sessions were observed in consecutive years and tutors (4) interviewed before and after the tutorial; six students (12 students) were recruited and interviewed during each year of their degree course (three times altogether). A biographical life grid was completed during the first year of the students’ course to provide a biography of each student. Despite the Law Society dictating a core curriculum for a qualifying law degree, the degrees were differently classified and framed. The main differences that emerged are expressed as three dichotomies (1) vocational/academic: Local offered ‘practical insights’ by including in the curriculum practical, work-based modules and learner centred teaching and has strong links with the legal profession. It offered a greater variety in assessment methods and more contact time (2) formal/informal relations: relationships between staff and students at Local were more informal and friendly than at Global where a clear, formal hierarchy between staff and students exists (3) independence/dependence: Global expected more independence of its students than Local where they were guided through material. Students at Local appeared to have higher levels of confidence when contributing to taught sessions and when using their legal knowledge in a professional environment, and project a sense of belonging within their departments and with other legal scholars. Students and staff at Local projected an identity as ‘future lawyers’ and vocational education, placements and acceptance onto professional legal training courses were highly regarded. In contrast to this, students, and particularly staff, at Global projected an identity as ‘academic, critical thinkers’ which does not relate to actual practice- vocational training and placements are extra-curricular, post-graduate concerns. Only one of the students at Global chose to pursue a career in law. In conclusion, I argued that students at Global and Local were being advantaged and disadvantaged by different elements of the pedagogy and curriculum.

My work in the field of the European Convention on Human Rights (ECHR) and domestic family law grew out of concern as to whether the so-called 'paramountcy principle' contained in the Children Act 1989 (CA 1989) was compatible with the ECHR as incorporated by the Human Rights Act 1998 (HRA). My first examination of its compatibility took place within the context of the extension of the paramountcy principle from private law children proceedings to public law adoption proceedings by the Adoption and Children Act 2002. This evolved into a larger and more detailed analysis with Professor Helen Fenwick, an expert in the field of human rights, of the compatibility of the principle in both private and public law proceedings under the CA 1989 within the broader context of the merits of adopting a rights-based approach to applications by parents under the act. This also examined in detail what I considered to be a great deal of sceptism about the adoption of a rights based approach and the possible reasons for it within the domestic family law field. After this, I was able to provide a detailed analysis of the merits of adopting a rights based approach to the issue of domestic violence with Professor Jonathan Herring in two further publications. All of these publications therefore form part of the body of work on which the PhD is based.

No description available.

Lord Neuberger describes open justice as a procedural principle requiring that "what goes on in court and what a court decides is open to scrutiny".1 The prime rationale typically given for this principle is that it is a safety check on the right to a fair trial, and so instrumental to the fulfilment of the justice purposes of criminal and civil justice processes. The thesis argues that such a conception of open justice only applies on a relatively superficial level to inquests into use-of-force deaths at the hands of the state. Rather it is clear that openness in these inquests is intrinsic to the purposes of the inquests themselves, and that this is also true of other types of investigation in these circumstances. The thesis examines the practice of, and rationales behind, opening up deaths at the hands of the police, or in police or prison custody to scrutiny in order to frame a context-specific conception of open justice in the aftermath of such deaths. The focus of the thesis is police and PPO investigations into deaths in prisons, IPCC investigations into deaths involving the police, and inquests and inquiries under the Inquiries Act 2005 (where the latter replace and fulfil the role of an inquest). The thesis introduces recognition theory both as a way of understanding the potential harms that may be associated with a lack of openness regarding deaths in these circumstances, and to provide a normative link between openness and justice in these circumstances—a link that is implicit in the term ‘open justice’ but rarely explored in these non-retributive, non-compensatory justice processes.

This thesis analyses “health care litigation” in Brazil and England. By health care litigation I mean those lawsuits in which claimants demand from the State the provision of a certain health treatment based on their entitlement to receive health care from the public health system or funded by it. The question that guides this thesis is whether courts intervening in rationing decisions make the public health system more or less fair. The concept of fairness I use in this thesis draws on the idea of “accountability for reasonableness” developed by Norman Daniel and Charles Sabin. This research will analyse the case-law of courts in Brazil and England, and the impact of litigation on the public health system. Based on this research, I argue that health care litigation in Brazil, where courts interpret the right to health as an individual trump against rationing decisions, is making the public health system less fair. Conversely, in England, where courts mainly control the procedure rather than the substance of the rationing decisions, litigation contributed to make health authorities more accountable and rationing decisions more public and based on better reasons, robust evidence and fair principles. Interestingly, even though courts in both countries have judged their cases in different ways, in the long term, litigation was one of the reasons for the creation of health technology assessment systems that try to legitimate rationing decisions through more public and better reasoned decisions: CONITEC in Brazil and NICE in England. The analysis of healthcare litigation in Brazil and England also contributes to the broader debate about social rights adjudication. These cases provide empirical and nuanced evidence that can be compared with the experience of other jurisdictions to shed light on the potential, risks and limits of courts controlling the allocation of resources in social policies using the language of social rights.

Health is an important matter for both individuals and states. Since the adoption of the Universal Declaration of Human Rights 1948 (UDHR), health has been categorised as a human right. In the years following this Declaration, many international treaties and national constitutions have emphasised this issue;for example, article 12 of the International Convention of Economic, Social and Cultural rights 1966 (ICESCR). However, as this thesis notes, the language in which this right is cast varies. This, it is argued, is problematic for any attempt to vindicate the right and ensure its justiciability. Accordingly an alternative definition is explored and clarified in what follows. In first chapter, the focus is on arguing that, the current phrases such as ‘right to health’, ‘right to medical care’, ‘the human right to highest attainable standards of health’ and ‘right to health protection’ are vague and weak and may prevent a clear understanding of the expectations that people may legitimately have. The main outcome is to describe a workable and more precise right which can also be legally enforced; that is, the right to health care. In the second chapter, the legal sources of the right to health care in international law are explored. In particular, it is argued that there are obligations on states to implement this right and, as members of the international community and the main subject of international law, to take all necessary steps to put it into practice by translating these obligations into domestic law, thus ensuring that health care is treated as a human right In addition, this chapter also describes the general principles of human rights, such as non-discrimination, participation and equity, that ought to be taken into account by the state`s authorities when they implement the right in question. The following two chapters are devoted to examining the status of the right to health care in the United Kingdom and Libya as models of developed and developing countries.According to health Act No 106 of 1973, health care appear to be simply human right in theory in both national law and international commitments however in practice the government as well as the judiciary did not take it seriously. As result, the case laws have not considered such right as human right nor a legal right for Libyans. In the UK, the reluctance of the government to treat health care as legal right has not stopped judges to evaluate health decisions makers and adjudicate whether such decisions were proper with the case in question. Thus, the chance for UK citizens to review the decisions of the health authorities is wider under the judicial review in terms of legal right rather than human right. In the conclusion, it is proposed that the main problem in according the right to health care the status of a human right is not in fact related to any inability of the judiciary to deal with social and economic rights, nor is it reliant on disagreement about the legal nature of the right and whether it should be categorised as a negative or a positive right, but relates rather to the meaning of the right and what it should include. It is further proposed that the right defended in this thesis – the right to health care – can solve this problem by clarifying the nature and content of the right. The UK experience shows that when such clarity exists, the debate about whether or not the right exists or is justiciable becomes irrelevant. Equally, the state can ignore the international distinctions between types of right and invest health care with the status of a justiciable right in domestic law. While the interim Libyan Government refers to a right to health care in its new constitution, it is clear that political will is necessary to translate it into reality. The Libyan state has much to learn from the healthcare and legal structures of the United Kingdom; particularly it can learn from examination of the mechanisms by which the UK, and other European nations and organisations, have effectively avoided the debate about whether or not the right to health care can be categorised as a human right by developing jurisprudence that renders it clear and justiciable in and of itself.