University of Manchester Student Law Review The University of Manchester’s School of Law Student Journal VOL. II The University of Manchester Student Law Review is a student led peer-reviewed journal founded at the University of Manchester, School of Law. The journal exhibits the best academic work in law, criminology and ethics, on both the undergraduate and postgraduate levels, publishing it annually. VOLUME II DECEMBER 2013 University of Manchester Student Law Review ©University of Manchester Student Law Review, 2013 All rights reserved The University of Manchester Student Law Review and its editors are not responsible for the opinions expressed in this journal. No part of this journal may be reproduced in any form without the expressed consent of The University of Manchester Student Law Review or the University of Manchester, School of Law. All enquires should be addressed to: University of Manchester Student Law Review Williamson Building, School of Law University of Manchester Manchester M13 9PL [email protected] Typeset in Baskerville Old Face Printed in United Kingdom University of Manchester Student Law Review Editor-in-Chief Ben Adamson Associate Editors Christopher Markou Craig Prescott Jorge Nunez Melissa Bone Michal Kniec Ugochukwu Orazulike Assistant Editors Ammar Lulla Ashley Porter Étienne Farmer Lacombe Iman Nauman Sarah Burke Sonam Cheema Layout and Design Emile Abdul-Wahab Finance Officer Joseph Tomlinson Faculty Advisors Prof Geraint Howells Prof Rodney Brazier Prof Margot Brazier Prof Toby Seddon Dr Jackson Maogoto Dinah Crystal OBE V This year’s edition was generously funded by the University of Manchester, School of Law. The entire editorial team are sincerely grateful for the School of Law’s continuing support. VI VII Preface from the Head of the School of Law On becoming Head of School I was happy to give the go ahead for this Review to be launched. It was an easy decision because of the enthusiasm of the students. It has also been one of the best decisions given the quality of what has been produced. It reflects the academic strength of the Law School and demonstrates that it spans the undergraduate and postgraduate communities and the disciplines of law, criminology and ethics. Particular thanks this year go to Ben Adamson, the editor. It was a daunting task to follow our energetic founding editor, Michal Kniec, but I have had chance to see advanced copy and he has pulled off a tremendous success. Once again the Review has managed to showcase the quality of scholarly work in the School in a format which is appealing and accessible. There is a whole team that has worked with Ben from authors and editors to those involved in the management and production of the Review. The Law School is proud to sponsor the Review and proud of our student community for producing work of such high quality. Geraint Howells Head of Law School VIII IX Preface from the Editor-in-Chief Familiar as I am with the prestige associated with student-led law reviews in the United States and their growing presence in the landscape of English legal education, I was very excited when I joined the University of Manchester Student Law Review in 2011 as an associate editor after its founding by Michal Kniec. Upon assuming the mantle of Editor-in-Chief for the Review’s second volume in 2012, I was eager to extend its already ambitious remit of publishing the finest examples of work from the School of Law’s undergraduate and taught postgraduate students to also include work from postgraduate research students - reflecting the University of Manchester’s membership of the Russell Group, and giving students a much sought after opportunity to publish original work stemming from their doctoral research. In this, our second year, the response rate from students to the call for papers was astonishing and we received more high quality papers than we could possibly publish in two or even three volumes, let alone one. This presented the Editorial Board with a tremendously difficult task, narrowing down the papers to the selection presented in this volume. More importantly, the response represents a source of great pride in the School of Law and its students and one that should be shared by all - that so many students have produced work that is not only of high academic quality but also of high interest value and a genuine pleasure to read. There are many people who deserve praise and thanks for their participation and support in the Review and it is regrettable that to list every one of them by name would be too time consuming an exercise. First and foremost I would like to thank Michal Kniec for all his hard work in founding the Review and for his continuing support throughout the second volume, allowing me to benefit from his considerable experience in student-led journals and from his passion and commitment to this Review. I would also like to thank Prof. Geraint Howells for his ongoing interest, X support and advice, and Dinah Crystal for her hard work in seeking and arranging funding. Without her priceless contribution, this book would not be in your hands today. Of course without the editors, we would have no articles ready for publication and mere words cannot express my gratitude for the work of the Editorial Board – all of whom were hand picked from a high number of excellent applications. Offering up constructive critique on work that is already of a very high standard is no easy task and I am confident that every one of the editors this year has truly done justice to their respective authors and I hope that everyone involved is as proud of this Review as I am. Volume two of the University of Manchester Student Law Review represents the culmination of a long and, at times, arduous journey for everyone involved from advisors to authors to editors and not least for myself but it also represents what has been a tremendously rewarding and enjoyable experience. The work published in this book truly sets the gold standard to which all University of Manchester law students should aspire and I hope that you derive as much inspiration and as much pleasure from reading it as we did from putting it together. Ben Adamson Editor-in-Chief XI Contents PREFACE FROM THE HEAD OF THE SCHOOL OF LAW ....... V PREFACE FROM THE EDITOR-IN-CHIEF ............................... IX STYLE OVER SUBSTANCE? A COMPARATIVE ANALYSIS OF THE ENGLISH AND FRENCH APPROACHES TO FAULT IN ESTABLISHING TORTIOUS LIABILITY ............................................ 1 Danny Watson SHAM SELF-EMPLOYMENT CONTRACTS: TAKING A LIBERTY? .... 15 Fabian McNeilly THE BLOODY CODE .................................................................... 28 Harriet Evans PROPORTIONALITY - AN UNATTAINABLE IDEAL IN THE CRIMINAL JUSTICE SYSTEM ........................................................... 41 Joel Goh MARPOL 73/78: THE CHALLENGES OF REGULATING VESSEL-SOURCE OIL POLLUTION ................................................ 73 Mark Szepes CONSTITUTIONAL REFORM AND THE CONTRIBUTION OF THE POLITICAL PARTIES SINCE THE BEGINNING OF THE 20TH CENTURY.................................................................................... 110 Richard Jones A RADICAL INTERPRETATION OF INDIVIDUAL SELF-DEFENCE IN WAR....................................................................................... 148 Tanzil Chowdhury MERCHANDISING AND BRAND EXTENSION IN THE MUSIC INDUSTRY ................................................................................... 190 Magdalena Borucka DO NO HARM: ‘BEST INTERESTS’, PATIENTS’ WISHES AND THE MENTAL CAPACITY ACT 2005 ............................................ 224 Sarah L Morgan XII HARD CASES .............................................................................. 240 Dorota Galeza CORPORATE TAKEOVERS AND SHAREHOLDER PROTECTION: UK TAKEOVER REGULATION IN PERSPECTIVE ......................... 267 Francis Okanigbuan WHAT HAS THE STATE GOT TO DO WITH HEALTHCARE? ......... 298 Malcolm Oswald Style over Substance? A Comparative Analysis of the English and French Approaches to Fault in Establishing Tortious Liability Danny Watson Abstract The English law and French law methods for establishing tortious liability are stylistically divergent. Casuistry prevails in English tort law, whereas the French law of delict (equivalent to English tort law) proceeds rigidly from a general principle of liability in three spartan articles of the Code Civil. The purpose of this article is to examine, with regard to the role of fault in tortious liability for harm caused by things under one’s control, whether these different methods produce substantively different results. The English and French approaches to fault-based liability have evolved near- concurrently. Through examining these policy-based evolutions, it will be shown that both systems have sought to attenuate fault-based liability for harm caused by things under one’s control, in favour of a stricter liability regime. This implies that the inflexible theoretical basis of liability in French law has not prevented the French system from incorporating policy just as fluidly as the English system. An exposition of the diminution of fault-based liability thus provides a salient example of how two legal systems with differing methodologies may coalesce in attaining practical solutions. I. Introduction The French law of liability for harm caused by things under one’s control is founded on a single article1 of the Code Civil. English law relies on the tort of negligence espoused in Donoghue v Stevenson 2 , as