In Bater v Bater Denning LJ stated that: ‘… in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard’. He added that a higher degree of probability would be required where a civil court was considering a charge of fraud than when considering whether negligence had been established. Even so, a court was not required to adopt ‘so high a degree as a criminal court, even when it is considering a charge of a criminal nature’. In Hornal v Neuberger he again suggested that: ‘The more serious the allegation the higher the degree of probability that is required: but it need not, in a civil case, reach the very high standard required by the criminal law’.
{"title":"ELECTION PETITIONS AND THE STANDARD OF PROOF","authors":"J. Hatchard","doi":"10.5750/DLJ.V27I0.1112","DOIUrl":"https://doi.org/10.5750/DLJ.V27I0.1112","url":null,"abstract":"In Bater v Bater Denning LJ stated that: ‘… in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard’. He added that a higher degree of probability would be required where a civil court was considering a charge of fraud than when considering whether negligence had been established. Even so, a court was not required to adopt ‘so high a degree as a criminal court, even when it is considering a charge of a criminal nature’. In Hornal v Neuberger he again suggested that: ‘The more serious the allegation the higher the degree of probability that is required: but it need not, in a civil case, reach the very high standard required by the criminal law’.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131658467","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Human trafficking for purposes of sexual and other forms of slavery continues to pose a major threat to the human rights and human dignity of many persons. This is particularly the case for young women from Eastern European nations. Not to be confused with human smuggling and undocumented immigration, human trafficking usually aims at exploitation, often through slavery in the form of un-oder underpaid domestic work or forced prostitution. The European Convention on Human Rights (ECHR) as well as jus cogens outlaw slavery. In this article it is shown by the authors that human trafficking - although not explicitly dealt with in the ECHR - is also prohibited if it aims at creating or maintaining a situation of slavery. Indeed, it is then prohibited by jus cogens and states have a positive obligation to combat human trafficking effectively. Many states fail to do so, showing that this problem is one of law enforcement rather than of creating effective legal norms since those already exist.
{"title":"SLAVERY UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE JUS COGENS PROHIBITION OF HUMAN TRAFFICKING","authors":"S. Kirchner, Vanessa M. Frese","doi":"10.5750/DLJ.V27I0.1105","DOIUrl":"https://doi.org/10.5750/DLJ.V27I0.1105","url":null,"abstract":"Human trafficking for purposes of sexual and other forms of slavery continues to pose a major threat to the human rights and human dignity of many persons. This is particularly the case for young women from Eastern European nations. Not to be confused with human smuggling and undocumented immigration, human trafficking usually aims at exploitation, often through slavery in the form of un-oder underpaid domestic work or forced prostitution. The European Convention on Human Rights (ECHR) as well as jus cogens outlaw slavery. In this article it is shown by the authors that human trafficking - although not explicitly dealt with in the ECHR - is also prohibited if it aims at creating or maintaining a situation of slavery. Indeed, it is then prohibited by jus cogens and states have a positive obligation to combat human trafficking effectively. Many states fail to do so, showing that this problem is one of law enforcement rather than of creating effective legal norms since those already exist.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"19 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133834081","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Raising Freedom’s Banner is essential reading for students studying Constitutional and Administrative law, for those with an interest in human rights and also for those engaged in peaceful protests the world over. Paul Harris is a practising barrister in England and Wales and a Senior Counsel in Hong Kong. He founded the Bar Human Rights Committee of England and Wales. He has acted in several cases involving the right to peaceful protest, a right preserved by much struggle which he meticulously charts throughout the pages of his truly rich and wonderful historical and legal account. Paul Harris successfully represented Falun Gong in upholding their right to protest outside a government building in Hong Kong as part of a peaceful hunger strike against the treatment of Falun Gong in mainland China. As any visitor to Chinatown in London or indeed elsewhere will know Falun Gong simply wish to pursue their peaceful beliefs in Taoist and Buddhist teachings. For Paul Harris protest is the visible existence of the bastion of freedom.
{"title":"RAISING FREEDOM’S BANNER HOW PEACEFUL DEMONSTRATIONS HAVE CHANGED THE WORLD","authors":"S. Edwards","doi":"10.5750/DLJ.V27I0.1116","DOIUrl":"https://doi.org/10.5750/DLJ.V27I0.1116","url":null,"abstract":"Raising Freedom’s Banner is essential reading for students studying Constitutional and Administrative law, for those with an interest in human rights and also for those engaged in peaceful protests the world over. Paul Harris is a practising barrister in England and Wales and a Senior Counsel in Hong Kong. He founded the Bar Human Rights Committee of England and Wales. He has acted in several cases involving the right to peaceful protest, a right preserved by much struggle which he meticulously charts throughout the pages of his truly rich and wonderful historical and legal account. Paul Harris successfully represented Falun Gong in upholding their right to protest outside a government building in Hong Kong as part of a peaceful hunger strike against the treatment of Falun Gong in mainland China. As any visitor to Chinatown in London or indeed elsewhere will know Falun Gong simply wish to pursue their peaceful beliefs in Taoist and Buddhist teachings. For Paul Harris protest is the visible existence of the bastion of freedom.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129533029","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Frank Furedi’s exposition of the Jimmy Savile scandal is a self-styled offer of a “sociologically informed explanation” of the drama, as it unfolded. Its publication date of 2013 is significant, because even a year is a long time in the dismal saga of child abuse revelations in 21 st century Britain.
{"title":"MORAL CRUSADES IN AN AGE OF MISTRUST: THE JIMMY SAVILE SCANDAL","authors":"C. Brennan","doi":"10.5750/DLJ.V26I0.961","DOIUrl":"https://doi.org/10.5750/DLJ.V26I0.961","url":null,"abstract":"Frank Furedi’s exposition of the Jimmy Savile scandal is a self-styled offer of a “sociologically informed explanation” of the drama, as it unfolded. Its publication date of 2013 is significant, because even a year is a long time in the dismal saga of child abuse revelations in 21 st century Britain.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"118 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125815057","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Not every decision we make is a good one. The power to make decisions includes the power to make bad choices as well as good ones. Unless there is some other factor, such as the exercise of undue influence, the overbearing of will through duress, or a mistake, good and bad decisions are equally enforceable in law. It might be thought that the same rule applies to decisions made by trustees, even though their decisions generally relate to the interests of the beneficiaries, rather than to their own interests. Of course, if the decision is so bad that it amounts to a breach of trust, and loss is thereby caused to the trust fund, then the breach might expose the trustees to liability to the beneficiaries. It was against this background that what became known as the rule in Re Hastings-Bass achieved prominence. A series of first instance decisions permitted trustees in some instances to backtrack on a decision which had unintended effects or consequences. The rule became subject to criticism, and was reviewed by the Supreme Court in Futter v HMRC on appeal from Pitt v Holt in the Court of Appeal. The decision of the Supreme Court substantially limits the scope of the rule, and identifies three circumstances where the decisions of trustees can be reversed: namely where there has been an operative mistake; excessive execution; or inadequate deliberation. This article explores the three dimensions to the rule in Re Hastings-Bass and identifies a number of difficulties with the decision in Futter v HMRC.
{"title":"REVISITING TRUSTEES' DECISIONS: IS PITT V HOLT THE FINAL WORD ON THE RULE IN RE HASTINGS-BASS?","authors":"R. Pearce","doi":"10.5750/DLJ.V26I0.960","DOIUrl":"https://doi.org/10.5750/DLJ.V26I0.960","url":null,"abstract":"Not every decision we make is a good one. The power to make decisions includes the power to make bad choices as well as good ones. Unless there is some other factor, such as the exercise of undue influence, the overbearing of will through duress, or a mistake, good and bad decisions are equally enforceable in law. It might be thought that the same rule applies to decisions made by trustees, even though their decisions generally relate to the interests of the beneficiaries, rather than to their own interests. Of course, if the decision is so bad that it amounts to a breach of trust, and loss is thereby caused to the trust fund, then the breach might expose the trustees to liability to the beneficiaries. It was against this background that what became known as the rule in Re Hastings-Bass achieved prominence. A series of first instance decisions permitted trustees in some instances to backtrack on a decision which had unintended effects or consequences. The rule became subject to criticism, and was reviewed by the Supreme Court in Futter v HMRC on appeal from Pitt v Holt in the Court of Appeal. The decision of the Supreme Court substantially limits the scope of the rule, and identifies three circumstances where the decisions of trustees can be reversed: namely where there has been an operative mistake; excessive execution; or inadequate deliberation. This article explores the three dimensions to the rule in Re Hastings-Bass and identifies a number of difficulties with the decision in Futter v HMRC.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"155 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133417561","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is a core feature of agency – where one person contractually agrees to act on behalf of another – that the agent owes a duty of loyalty to his principal. This means that an agent must disclose to his principal any profits or gains which he stands to make personally from the transaction involved. An agent is not allowed to receive a corrupt payment such as a bribe to act in a way which is not in his principal’s interest. Indeed, to prevent an abuse of the relationship, even if an agent does not act corruptly, he cannot retain any personal profit made in a transaction relating to his principal unless that profit (for instance an additional commission) has been disclosed to and approved by the principal. So, in Boardman v Phipps a solicitor who made a large profit for a trust was prevented from keeping the profit he made for himself because it had not been agreed by all the trustees and beneficiaries. It was never suggested that he acted dishonestly.
代理的一个核心特征是——一个人以契约的方式同意代表另一个人行事——代理人对他的委托人负有忠诚的义务。这意味着代理人必须向其委托人披露他个人从所涉及的交易中获得的任何利润或收益。代理人不得收受贿赂，例如以不符合其委托人利益的方式行事。事实上，为了防止滥用这种关系，即使代理人没有贪污，他也不能保留在与委托人有关的交易中获得的任何个人利润，除非该利润(例如额外的佣金)已向委托人披露并经其批准。因此，在Boardman v Phipps一案中，一位为信托赚取巨额利润的律师被禁止为自己保留这笔利润，因为这笔利润没有得到所有受托人和受益人的同意。从来没有人说他行为不诚实。
{"title":"BRIBES, SECRET COMMISSIONS AND THE MONTE CARLO GRAND HOTEL","authors":"R. Pearce","doi":"10.5750/dlj.v26i0.933","DOIUrl":"https://doi.org/10.5750/dlj.v26i0.933","url":null,"abstract":"It is a core feature of agency – where one person contractually agrees to act on behalf of another – that the agent owes a duty of loyalty to his principal. This means that an agent must disclose to his principal any profits or gains which he stands to make personally from the transaction involved. An agent is not allowed to receive a corrupt payment such as a bribe to act in a way which is not in his principal’s interest. Indeed, to prevent an abuse of the relationship, even if an agent does not act corruptly, he cannot retain any personal profit made in a transaction relating to his principal unless that profit (for instance an additional commission) has been disclosed to and approved by the principal. So, in Boardman v Phipps a solicitor who made a large profit for a trust was prevented from keeping the profit he made for himself because it had not been agreed by all the trustees and beneficiaries. It was never suggested that he acted dishonestly.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"118 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130759622","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article seeks to trace the evolution of equity’s jurisdiction to relieve against the forfeiture of leases from the early 17 th century cases through to the present day. Although the celebrated case of Sanders v Pope , decided in 1806, marked a trend towards a more flexible (discretionary) approach to equitable relief, this was to be short lived following Lord Eldon’s judgment in Hill v Barclay in 1811 declining to grant relief against forfeiture of a lease for a wilful breach of covenant not involving the failure to pay rent even where the same was capable of adequate compensation. This remained the position until 1973, when the House of Lords in Shiloh Spinners Ltd v Harding took the opportunity to review the whole question of the scope of equity’s jurisdiction to relieve against forfeiture. What emerged was a principled approach to the grant of equitable relief which was not limited to the two orthodox heads of relief: (a) where the right to forfeit was inserted by way of security for the payment of rent nd (b) where the breach had been occasioned by fraud, accident, mistake or surprise. The Shiloh ruling paved the way for the granting of relief for breaches of other covenants in the same way as that in the case of rent, namely, to prevent a forfeiture where the landlord may be adequately compensated and receive proper undertakings as to future performance, so that the forfeiture clause is merely security to achieve these results.
本文试图追溯衡平法对没收租赁的救济管辖权从17世纪初的案例到今天的演变。尽管1806年决定的著名的Sanders v Pope案标志着一种更灵活(自由裁量)的衡平法救济方式的趋势，但在1811年Eldon勋爵(Lord Eldon)在Hill v Barclay案中作出判决后，这一趋势是短暂的，Eldon拒绝对因故意违反契约而被没收的租赁给予救济，即使该契约不涉及未能支付租金，即使该契约能够获得足够的赔偿。这种情况一直持续到1973年，当时上议院在Shiloh Spinners Ltd诉Harding案中借此机会审查了衡平法管辖权范围的整个问题，以缓解没收。所出现的是一种给予衡平法救济的原则性办法，这种办法不限于两种正统的救济类别:(a)没收权是作为支付租金的担保而插入的;(b)违约是由于欺诈、意外、错误或意外造成的。希洛案的裁决为对违反其他契约的行为给予救济铺平了道路，就像在租金的情况下一样，即防止没收，房东可能得到充分的补偿，并获得有关未来履行的适当承诺，因此没收条款仅仅是实现这些结果的保证。
{"title":"EQUITY’S JURISDICTION TO RELIEVE AGAINST FORFEITURE OF LEASES – AN HISTORICAL PERSPECTIVE","authors":"M. Pawlowski","doi":"10.5750/DLJ.V26I0.937","DOIUrl":"https://doi.org/10.5750/DLJ.V26I0.937","url":null,"abstract":"This article seeks to trace the evolution of equity’s jurisdiction to relieve against the forfeiture of leases from the early 17 th century cases through to the present day. Although the celebrated case of Sanders v Pope , decided in 1806, marked a trend towards a more flexible (discretionary) approach to equitable relief, this was to be short lived following Lord Eldon’s judgment in Hill v Barclay in 1811 declining to grant relief against forfeiture of a lease for a wilful breach of covenant not involving the failure to pay rent even where the same was capable of adequate compensation. This remained the position until 1973, when the House of Lords in Shiloh Spinners Ltd v Harding took the opportunity to review the whole question of the scope of equity’s jurisdiction to relieve against forfeiture. What emerged was a principled approach to the grant of equitable relief which was not limited to the two orthodox heads of relief: (a) where the right to forfeit was inserted by way of security for the payment of rent nd (b) where the breach had been occasioned by fraud, accident, mistake or surprise. The Shiloh ruling paved the way for the granting of relief for breaches of other covenants in the same way as that in the case of rent, namely, to prevent a forfeiture where the landlord may be adequately compensated and receive proper undertakings as to future performance, so that the forfeiture clause is merely security to achieve these results.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131040277","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this important case on the Landlord and Tenant Act 1985 (as amended by the Commonhold and Leasehold Reform Act 2002) the Supreme Court, by a bare majority, allowed the appeal against the decision of a Leasehold Valuation Tribunal (LVT) which had been affirmed by, first, the Upper Tribunal (Lands Chamber), and, secondly, by the Court of Appeal. Almost all long leases of flats contain an obligation on the landlord (or a service company) to provide services, such as repairing the exterior and common parts of the block, and a concomitant obligation on the tenants to pay service charges. The right of the landlord to recover such service charges depends on the terms of the particular lease, but the 1985 Act and the Service Charges (Consultation Requirements)(England) Regulations 2003 impose certain statutory requirements and restrictions on a landlord, which impinge on its ability to recover service charges. These requirements are designed to ensure that tenants of flats are not required (i) to pay for unnecessary services or services which are provided to a defective standard, and (ii) to pay more than they should for services which are necessary and have been provided to an acceptable standard.
{"title":"DAEJAN INVESTMENTS LTD V BENSON [2013] UKSC 14, [2013] 1 WLR 854, [2013] 2 ALL ER 375","authors":"P. Pettit","doi":"10.5750/DLJ.V26I0.927","DOIUrl":"https://doi.org/10.5750/DLJ.V26I0.927","url":null,"abstract":"In this important case on the Landlord and Tenant Act 1985 (as amended by the Commonhold and Leasehold Reform Act 2002) the Supreme Court, by a bare majority, allowed the appeal against the decision of a Leasehold Valuation Tribunal (LVT) which had been affirmed by, first, the Upper Tribunal (Lands Chamber), and, secondly, by the Court of Appeal. Almost all long leases of flats contain an obligation on the landlord (or a service company) to provide services, such as repairing the exterior and common parts of the block, and a concomitant obligation on the tenants to pay service charges. The right of the landlord to recover such service charges depends on the terms of the particular lease, but the 1985 Act and the Service Charges (Consultation Requirements)(England) Regulations 2003 impose certain statutory requirements and restrictions on a landlord, which impinge on its ability to recover service charges. These requirements are designed to ensure that tenants of flats are not required (i) to pay for unnecessary services or services which are provided to a defective standard, and (ii) to pay more than they should for services which are necessary and have been provided to an acceptable standard.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125434324","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the 1970s in parts of the Middle East and in the Gulf, (United Arab Emirates, Oman and Qatar especially), the burqa or niqab when worn was worn by women from tribal regions only. Otherwise known as a ‘batoola’ this garment is a head and face covering with an area of mesh covering the eyes, another variation is provided by a mask covering the face and nose. Jonathan Raban in 1979 observed such sights in London ‘...it was on the Earl’s Court Road that I first saw the strange beak shaped foil masks of Gulf women...’ There has been a modernist revival in these once rare face coverings for a multiplicity of reasons and correspondingly the wearing of them contain several meanings. The burqa is worn for political, religious and other reasons, but also although not exclusively it is a garment intended to keep women in subjection. Stuart Hall in interpreting the work of Frantz Fanon’s 1960’s writings on the burqa (then called the veil) for Algerian women, explained ‘no sign is fixed in its meaning’ emphasising the fluidity of the burqa and also its capacity for appropriation by others. This is also true when considering the symbolic significance of the burqa today. Wearing it is defended as a right to choose, albeit in parts of Asia, for example in Afghanistan in the tribal regions, the burqa is a requirement for women. Whilst in some parts of Africa and the Middle East wearing the burqa is expressly prohibited. In the West and on the streets of London (following recent patterns of migration) the burqa is an increasingly common sight, and whilst it might have been worn by a woman who was subject to the norms of her own society and merely visiting the United Kingdom, many women who choose to settle in the United Kingdom and desire United Kingdom nationality are also wearing the burqa. This demonstration and visible representation of otherness has created anxiety, provoked public debate and criticism, and in France and Belgium, prohibition.
{"title":"NO BURQAS WE’RE FRENCH! THE WIDE MARGIN OF APPRECIATION AND THE ECtHR BURQA RULING","authors":"S. Edwards","doi":"10.5750/DLJ.V26I0.931","DOIUrl":"https://doi.org/10.5750/DLJ.V26I0.931","url":null,"abstract":"In the 1970s in parts of the Middle East and in the Gulf, (United Arab Emirates, Oman and Qatar especially), the burqa or niqab when worn was worn by women from tribal regions only. Otherwise known as a ‘batoola’ this garment is a head and face covering with an area of mesh covering the eyes, another variation is provided by a mask covering the face and nose. Jonathan Raban in 1979 observed such sights in London ‘...it was on the Earl’s Court Road that I first saw the strange beak shaped foil masks of Gulf women...’ There has been a modernist revival in these once rare face coverings for a multiplicity of reasons and correspondingly the wearing of them contain several meanings. The burqa is worn for political, religious and other reasons, but also although not exclusively it is a garment intended to keep women in subjection. Stuart Hall in interpreting the work of Frantz Fanon’s 1960’s writings on the burqa (then called the veil) for Algerian women, explained ‘no sign is fixed in its meaning’ emphasising the fluidity of the burqa and also its capacity for appropriation by others. This is also true when considering the symbolic significance of the burqa today. Wearing it is defended as a right to choose, albeit in parts of Asia, for example in Afghanistan in the tribal regions, the burqa is a requirement for women. Whilst in some parts of Africa and the Middle East wearing the burqa is expressly prohibited. In the West and on the streets of London (following recent patterns of migration) the burqa is an increasingly common sight, and whilst it might have been worn by a woman who was subject to the norms of her own society and merely visiting the United Kingdom, many women who choose to settle in the United Kingdom and desire United Kingdom nationality are also wearing the burqa. This demonstration and visible representation of otherness has created anxiety, provoked public debate and criticism, and in France and Belgium, prohibition.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"89 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125096357","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The United Kingdom Supreme Court has recently handed down the much anticipated judgment in R (Barkas) v North Yorkshire County Council (“ Barkas ”). The case addressed the “by right” defence in village green law and whether use that is pursuant to a statutory right could be use “as of right” for the purposes of village green registration. The court unanimously ruled that use “by right” could not be considered as use “as of right” and would not be qualifying use for the purposes of registration. Use will be “by right” when it is pursuant to a statutory right to use the land, and is usually engaged when the land in question is in public ownership. In reaching this judgment the court overruled the previous authority of R (Beresford) v Sunderland City Council (“ Beresford” ) . The Supreme Court left many questions unanswered, although the culmination of recent activity in village green law now makes it considerably harder to register new greens. The inability to protect recreational spaces through village green registration potentially makes this land available for development, thus tipping the balance in favour of the economic aim, at the expense of the social and environmental aims, of sustainable development.
{"title":"The setting of the sun on the village green era","authors":"N. Pratt","doi":"10.5750/DLJ.V26I0.930","DOIUrl":"https://doi.org/10.5750/DLJ.V26I0.930","url":null,"abstract":"The United Kingdom Supreme Court has recently handed down the much anticipated judgment in R (Barkas) v North Yorkshire County Council (“ Barkas ”). The case addressed the “by right” defence in village green law and whether use that is pursuant to a statutory right could be use “as of right” for the purposes of village green registration. The court unanimously ruled that use “by right” could not be considered as use “as of right” and would not be qualifying use for the purposes of registration. Use will be “by right” when it is pursuant to a statutory right to use the land, and is usually engaged when the land in question is in public ownership. In reaching this judgment the court overruled the previous authority of R (Beresford) v Sunderland City Council (“ Beresford” ) . The Supreme Court left many questions unanswered, although the culmination of recent activity in village green law now makes it considerably harder to register new greens. The inability to protect recreational spaces through village green registration potentially makes this land available for development, thus tipping the balance in favour of the economic aim, at the expense of the social and environmental aims, of sustainable development.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"28 12","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133426269","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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