North East Law Review Volume 4 March 2016 North East Law Review Newcastle University Board of Editors Editor-in-Chief Derek Whayman Deputy Editor Michael Lamb Treasurer Timothy Wilson Editors Faisal Ali Marti Alnaes Lois Arbuthnot Emma Broadhouse Rachel Butt Jaime Carr Richard Carruthers Stephen Cousins Aoife Herity Amjad Kadhim Simran Lajmi Kerry McFarlane Monica McLaren Kate Morris Amy Musson Ehsan Oarith Shauna O’Neil Lora Petkova James Rickerby Chloe Sanderson Emily Woodside Foreword Message from the Editor-in-Chief This year I took over the running of the Review from Corey Krohman. It has been quite an eye-opener in terms of the work and effort required to organise such an endeavour and I can only offer my respect to Editors past and present who have contributed. I would like to thank the editorial team for their efforts on another very sizeable volume. I would also like to thank the staff who also make the North East Law Review possible: Professor Christopher Rodgers, head of school; and Dr Christine Beuermann and Ms Lida Pitsillidou whose work as staff liaisons has been invaluable. Thanks also go to Mr Richard Hogg for his graphic design work for the covers and Tiffany Kwok for the posters. I hope readers of this volume will learn something about the substantive law, but also something about the communication of it. Law, like many things, throws up ideas, concepts, conflicts and, of course, solutions, but all of this is to naught unless it can be communicated. It is a difficult challenge to seek to persuade someone to take one’s point of view, which is why the process of writing and editing is so painstaking. The text must explain, reason and carry the reader with it without distractions from errors. I am delighted to present the many articles which do just that. Derek Whayman Message from the Deputy Editor I welcome our readers, both new and returning, to the latest volume of the North East Law Review. As has been the case in previous years, we are proud to present the finest articles produced by Newcastle Law School students over the last academic year. It is also with great pleasure that we are once again are able to present a guest publication, this time from Calvin Walker of Northumbria University. It is my sincere hope that future volumes will continue to attract similar contributions from across the North East in the years to come and develop this forum for student achievement further still. I too would like to join Derek in thanking all the members of staff who have kindly provided their time and expertise to aid in the publication of this volume, as their continued support has been invaluable. My thanks go also to the editorial team, without whom the continued existence of this student-led journal would not be possible. Particular thanks are also owed to Tiffany Kwok for her graphic design work this year. In the absence of her assistance with our poster campaign I would surely have found my own artistic skills to be somewhat lacking. Michael Lamb The Editorial Board would like to thank all of the staff and students from Newcastle University who have helped in the creation of this issue. Without their support, the North East Law Review would not be possible. For its financial support, the North East Law Review is indebted to Newcastle University Law School for providing funding for printing and other costs and to Thomson Reuters for further sponsorship. Please note that the views expressed by the contributors in this journal are not necessarily those of the Editors or of the Review. Whilst every effort has been made to ensure that the information contained in the Review is correct, the Editors and the Review do not accept any responsibility for any errors or omissions, or for any resulting consequences. Newcastle University NE1 7RU This volume should be cited as (2016) 4 NELR ISSN 2056-2918 (Print) ISSN 2056-2926 (Online) Table of Contents A Hobbesian Analysis of the New Global Super-Rich 1 Calvin Walker The Success of the Double Jeopardy Provisions 7 Benjamin Leach The Theatre As a Suitable Place for Jurisprudential Reflection 12 Alexander Maine Handmaids, Markets and Free Will: Reforming the Law on Surrogacy 17 Max Mugnaioni Cartels And The Criminal law 22 Dimitrios Pittas Privacy, Incrementalism and the UK Legal Order: A Cultural Analysis 27 Matthew Paterson McPhail v Doulton and the Fundamental Distinction Between Trusts and Powers 52 Benjamin Donnell Traditional and Functional Views of the Family in the Law 56 Megan Atack The Failure of R v Killick to Give Victims of Crime a Voice 62 Zoe Carre International Human Rights: The Persuasion Approach 67 Viačeslav Volžanin The ‘Blurred Lines’ of Capacity to Consent in Rape 72 Anne Topping The Democratic Deficit of the EU 97 Philip Parry Commercial Integrity, Christus Consumator and the Circumspective Haute Bourgeoisie: The Common Law as a Contested Tradition in Victorian Britain 102 Benjamin Lloyd Must Do Better: The Lords’ Frustration of Mutual Trust 108 Corey Krohman Reasons to Abandon the Institution of Marriage 114 Megan Atack Our ‘After Sovereignty’ Arrangement 120 Matthew Paterson Untangling the Rule in Rylands v Fletcher from Nuisance 127 Liam Rose The EU and the ECHR Protocols – A Critique of ‘Selective’ Accession 132 Ross Howells Problems in the Law Relating to Drug Suppliers and Manslaughter 153 Christopher Grayson Integrated Product Policy: An Alternative to Direct and Economic Regulation of Waste 157 Natalie Caple NORTH EAST LAW REVIEW 1 A HOBBESIAN ANALYSIS OF THE NEW GLOBAL SUPER- RICH Calvin Walker* 1 INTRODUCTION fixed’.4 Hobbes would have us use comparable Thomas Hobbes’ political theory is part of the social definitions in all endeavours; we come to understand a contract tradition, asserting that civil society owes its watch by taking it apart.5 A working definition of the existence to a covenant between individuals to the state should therefore give us an idea of how it was effect that each will submit to the governance of a produced from its constituent elements. The traditional sovereign entity.1 The theory, as expressed in his frontispiece to Leviathan depicts an imposing, seminal work Leviathan, will be considered alongside monarchical figure seemingly made up of a multitude a TED talk given by Chrystia Freeland entitled ‘Rise of individuals; this is representative of the fact that, in of the New Global Super-Rich’,2 in which Freeland Hobbes’ conception, individual humans were the presents the global phenomenon of ‘Economic building blocks of ‘Leviathan’, a mortal god charged Inequality’ as the major social dilemma of our with the task of civil governance.6 Thus in order to generation. Jean-Jacques Rousseau, a key figure in the understand what the state is we must understand how social contract tradition, was critical of Economic it could be produced from an uncivilised multitude of Inequality in a number of his works. In light of his humans, and this in turn requires us to have an criticisms it is to be shown that Hobbes’ political understanding of human nature. This is the task with theory is flawed in its handling of the seditious which Hobbes concerns himself in Leviathan. influences of ‘Pride’ and Economic Inequality. It will also be argued that the implications Hobbes’ theory 3 THE STATE OF NATURE has for the political power of the individual shows that Hobbes reasoned that, without civil society, it is fundamentally at odds with the political reality of individuals would exist in the ‘state of nature’; a our time, and is of limited utility as a solution to the condition entailing war of all against all.7 This war was problem Freeland describes. not necessarily continuous battle, but rather a commonly known willingness to resort to combat 2 HOBBES’ THEORY AND AIMS where necessary.8 Hobbes was at pains to describe this Hobbes was impressed by the scientific method state as being most abhorrent; the life of man was said entailed in geometry, which had a significant impact to be ‘solitary, poor, nasty, brutish and short’.9 Pre- on his philosophical methodology; Hobbes’ political society is depicted in this way in order to application of the scientific method to social theory demonstrate the importance of supporting civil arguably justifies his recognition as ‘the inventor of government, as Hobbes sought to avoid anarchy, the social science as that term has been understood in the dissolution of the state, at all costs.10 Hobbes did not modern world.’3 In geometric terms we may define a regard his view as unduly pessimistic; he observed that circle as ‘the figure produced by one end of a straight in civil society, although there are myriad laws line moving continuously while the other end remains forbidding the likes of theft, when leaving their homes * Northumbria University School of Law, MLaw. 1 Thomas Hobbes, Leviathan (first published 1651, OUP 2008) 114. 2 Chrystia Freeland, ‘The Rise of the New Global Super-Rich’ TED Talk (June 2013) <http://www.ted.com/talks/chrystia_freeland_the_rise_of_the_new_global_super_rich.html> accessed 18 November 2015. 3 D D Raphael, Hobbes: Morals and Politics (Allen & Unwin 1977) 18. 4 ibid 19. 5 Thomas Hobbes, Of Man and Citizen (De Homine and De Cive) (Bernard Gert ed, 3rd edn, Hackett 1998) 98. 6 Hobbes (n 1) 114. 7 ibid 84. 8 ibid. 9 ibid. 10 Raphael (n 3) 16. 2 A HOBBESIAN ANALYSIS OF THE NEW GLOBAL SUPER-RICH individuals lock their doors to guard against intruders hereby recognises that a major aspect of human nature through fear of their property being stolen.11 What, is a desire not only to be superior but to be viewed as Hobbes asks, does this say of our view of our fellow such.