GRAY’S INN STUDENT LAW JOURNAL Volume IV 2012 COMPILED BY Richard Hanstock Vol. IV Gray’s Inn Student Law Journal 2012 TABLE OF CONTENTS Editorial Note RICHARD HANSTOCK 4 President’s Foreword SHABANA SALEEM 6 Secret Trials and Special Advocates: THe dangers of moving from tHe last resort PAUL LIVINGSTON 7 Challenging Jurors SARAH GOOD-ALLEN 17 Loss of Control: An Answer to Homosexual Discrimination? LAUREN CROOK 34 ‘Live and Let Live’: THe responsibility of women in tHe maternal-foetal conflict ELIZABETH REDINGTON 65 Mental illness and diversion from tHe criminal justice system CELYN COOPER 86 Policing the Internet: The ‘Safer e-Communities’ Model RICHARD HANSTOCK 104 Command Responsibility and Successor Liability SARA FANTONI 168 To wHat extent are Economic, Social and Cultural RigHts applicable in times of Armed Conflict? MICHEÁL T MURPHY 173 Defending a General cHarged witH war crimes: a summary of tHe case of Vinko Pandurević at tHe ICTY HELENA TOŠIĆ 190 Indus Water Treaty in tHe ICJ: An Alternative ApproacH to Resolve Indo-Pak Water Disputes AQEEL MALIK 198 Institutional Reform of Competition Law AutHorities: Accounting for PsycHological and Economic Factors tHat Influence BeHaviour SAM PRICE 226 To wHat extent Have tHe cases of Viking, Laval and Demir led to cHange in tHe ability of trades union to take effective strike action in Europe? ALEX JUST 238 Intellectual Property Law & tHe needs of consumers, creators / innovators and tHe public interest: An appropriate balance? ANDREW PELLINGTON 260 2 Vol. IV Gray’s Inn Student Law Journal 2012 Overriding Interests under tHe Land Registration Act 2002 MATTHEW ASTLEY 285 Directors, Codes of Practice, and tHe Companies Act 2006: Accountability Guaranteed? ANDREW PELLINGTON 298 Risky Business: CHallenges and CHanges in tHe Assessment of tHe Standard of Care Owed to Participants in Supervised ‘Extreme’ Sports FREDERICK LYON 316 Has Bolitho redressed tHe balance between defendants and claimants in cases of clinical negligence? CELYN COOPER 332 The Human Tissue Act 2004 FIONA SHORE 351 ADR, UK Sport and tHe structure of Tribunals DHARMINDER RUPRA 367 The Accentuated Advocate CHARLOTTE DONALD 375 3 Vol. IV Gray’s Inn Student Law Journal 2012 Editorial Note RICHARD HANSTOCK It is a privilege to have been entrusted with the compilation of this volume of the Gray’s Inn Student Law Journal. Even though this Journal is still in its infancy, the response to my Call for Papers this year has been immense, and I have endeavoured to accommodate as many submissions as possible. The result is a diverse compilation of essays and articles, offering a cross-section of the interests and experience within the Gray’s Inn student community. This volume begins with a topical piece on closed material proceedings, moving into criminal procedure with an essay on the right to challenge. Articles on crime and criminology follow, including my own piece on the future of Internet policing. An international outlook continues with essays on successor liability, rights in times of armed conflict, and a summary of the case against General Pandurević from a member of his defence team. A new perspective on competition law is encouraged in a later article, followed by assessments of the right to strike, the state of intellectual property law and the accountability of company directors. Questions of medical ethics are considered, and gripping mountaineering stories punctuate an essay on negligence in extreme sports. This volume concludes with a special journalistic piece that is sure to turn a smile, on regional accents at the Bar. As one might expect from aspiring barristers, each of these essays and articles are united by a concern for fairness and individual rights. This Journal reflects the interests of a lively community of current and recent students, many of whom will continue to play a part in the fabric of Gray’s Inn for years to come. Owing to the diversity of these publications, my editorial input into these essays has been limited. Full credit is due to the respective authors, whilst any errors in formatting are mine alone. 4 Vol. IV Gray’s Inn Student Law Journal 2012 As well as being available electronically, this is the first volume of the Gray’s Inn Student Law Journal to be committed to print. Copies will be placed in the Gray’s Inn Library, and the electronic version will be available worldwide. It is my hope that as well as providing interesting and useful reading, sparking dialogue between students in a range of disciplines, this Journal might serve to attract future students to join the community that underlies this publication, and to get involved in the Committee responsible for arranging it. None of this would have been possible without the support of the Education Department, and that of my peers on the Committee of the Association of Gray’s Inn Students. I am particularly grateful to the volunteers who helped me to review submissions to this Journal, especially Matthew Astley and Justin Tadros. Though of course, the real stars of this publication are the dozens of students who took the time to submit their work for consideration. Thank you all. RICHARD HANSTOCK Suggested citation: Bloggs, J. ‘Article title’. Gray’s Inn Student Law Journal (2012) Vol. 4, pp. 100-200. 5 Vol. IV Gray’s Inn Student Law Journal 2012 President’s Foreword SHABANA SALEEM1 It is with immeasurable pride that I write this foreword. It took a great deal of commitment and hard work to launch the Gray’s Inn Journal. In the words of Ben M’Hidi, “it is hard to start a revolution, but even harder to continue it”. While the Gray’s Inn Journal may not have been ‘revolutionary’, it is without any doubt that I can say it has taken even harder work and commitment from the numerous contributors and the Journal Editor, Richard Hanstock, to revive this pioneering Journal. Critics have often pointed to the difficulties of students producing and editing scholarly work. What skills can students offer to legal scholarship? How can students, so little experienced, contribute to the development of legal studies? The Journal contributors have proven that our students have an important role to play in legal scholarship and in informing legal practice. I enjoyed reading every article and learnt a vast amount from overriding proprietary interests to the diversity of accents in advocates. I would like to thank each contributor, on behalf of AGIS, for not only taking the time to write but on a more personal note for educating me on such a variety of legal topics. I would like to ask you to support the contributors by promoting the Journal in forwarding it to students, practitioners and academics. I hope you will find the articles as interesting as I have. SHABANA SALEEM 1 Shabana Saleem, President of the Association of Gray’s Inn Students 2011–2012. 6 Vol. IV Gray’s Inn Student Law Journal 2012 Secret Trials and Special Advocates: The dangers of moving from the last resort PAUL LIVINGSTON Introduction Sent out for consultation to nestle quietly amongst the star-studded Leveson Inquiry and the widely-reported Legal Aid Bill, the ‘Justice and Security’ Green Paper1 should in fact have been accompanied by red flashing lights. With an Opposition seemingly unwilling to make anything other than the most populist stands in the justice sphere, the right to a fair trial is likely to be dangerously undermined without so much as a whimper from our elected politicians. Although there have been excellent responses to this consultation from organisations, groups and individuals, the fact that these only number around 90 demonstrates a lack of engagement in an attempt to impose secret trials on an unsuspecting public. The Government proposes to introduce legislation that will make ‘closed material procedures’ (CMPs) more broadly available in civil proceedings where sensitive material is relied upon. Material will be sensitive where, for example, disclosure of it may put an informant in danger or hinder the effective operation of the security services. CMPs allow the Government to avoid disclosing the ‘closed material’ to individuals or their legal representatives and to instead appoint ‘Special Advocates’. They are independent, security-cleared lawyers, who will have access to the closed material and have the responsibility of fighting for the maximum amount of information to be disclosed. Once the closed material has been served on the Special Advocate, they must then represent the individual to the best of their ability. Lord Denning once espoused that “If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him”2 and CMPs are therefore a departure from this fundamental right. The most frequent use of CMPs has been in control order 1 Justice and Security Green Paper, Cm 8194, October 2011 (‘Green Paper’). 2 Kanda v Government of Malaya [1962] AC 322, 337. 7 Vol. IV Gray’s Inn Student Law Journal 2012 or immigration appeal cases; cases that remain in the civil law sphere but which have an enormous effect on the lives and liberty of those concerned. Although the Supreme Court confirmed in Al Rawi3 that CMPs cannot be used in the absence of statutory authority, this Green Paper appears to be an attempt to provide sufficient statutory authority that CMPs will be possible in any civil case where the Government feels there is a public interest in non-disclosure. This article will not reiterate the persuasive objections to these proposals that have already been made on the grounds that CMPs are contrary to Article 6 of the European Convention of Human Rights (ECHR) and that their very existence, never mind extension, constitute an unacceptable affront to natural and open justice.