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January 2013, Volume 1: Issue 2

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THE UNITED KINGDOM LAW STUDENTS’ REVIEW
Volume 1, Issue 2 – January 2013
www.uklsa.co.uk/law-review.htm
The UKLSR is the flagship publication of the UK Law Students’ Association. We
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© Copyright 2013 by UK Law Students’ Association. All rights reserved.

The UK Law Students’ Association
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Acknowledgements
The UK Law Students’ Association (UKLSA) was founded in February 2008 with the
aim of bringing all UK law students together. The Association aims to provide
students with a common national platform to share and develop their ideas and enrich
their university experience.
The Association would like to take this opportunity to thank some of those who have
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Court) for his cooperation in making it a success. We would also like to thank our
Governors, Fatos Selita and Vaughan Jacob, for their constant support throughout the
year.
The UK Law Students’ Review (UKLSR) was established with the aim of furthering
the Association’s aims and it is with the greatest pleasure that I welcome the launch of
UKLSA’s flagship publication. It is a student-led academic journal independent of
any single law school, which aims to reflect the high standard of student-created
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submitted articles for this issue of the journal – your contributions have played a key
role in the qualitative development of the UKLSR.
Ranamit Banerjee
UK Law Students’ Association President 2011-12

CONTENTS
ARTICLES
In#Whose#Best#Interests?#Reconsidering#the#Judicial#Approach#Adopted#in#
Relocation#Disputes.#..........................................................................................................................#1!
Oliver Powell, University of Oxford
#
Google’s#Decision#to#Permit#Competitors#and#Rivals#to#Purchase#Keywords#of#
Trademarks#Acceptable#as#Long#as#it#Does#Not#Cause#Consumer#Brand#Confusion
#..................................................................................................................................................................#13!
Ren-En Lim, Liverpool University
#
The#Human#Rights#Act#Section#2(1)#Taken#into#Account#................................................#23!
Ciju Puthuppally, University of Cambridge
#
Violence#Against#Women#During#Armed#Conflicts#............................................................#39!
Zara Qurashi, University of Nottingham
#
Was#The#Abolition#of#the#Doctrine#of#Doli#Incapax#Necessary?#...................................#50!
Hannah Wishart, Manchester University
#
Battling#Bolam;'Doctors#1,#Patients#0#......................................................................................#64!
Dr Kim Castle, Bangor University
#
CASE NOTES
Al#Skeini#and#Others#v#United#Kingdom#(2011)#53#EHRR#18#........................................#89#
Tom Hamilton, University of Cambridge
Campbell#v#Mirror#Group#Newspapers#Ltd#[2004]#UKHL#22.#The#Relationship#
Between#the#European#Convention#on#Human#Rights#and#Privacy#in#the#Common#
Law#.........................................................................................................................................................#94!
Emily Whittaker, Exeter University
#
Judgment#of#the#European#Court#of#Justice,#13#October#2011,#Pierre'Fabre'Dermo/
Cosmétique'Sas,#C_439/09#Concerning#Another#Restriction#by#Object#on#Internet#
Sales#Ban#...........................................................................................................................................#100!
Dr. iur. Verena Klappstein, London School of Economics

IN WHOSE BEST INTERESTS? RECONSIDERING THE JUDICIAL
APPROACH ADOPTED IN RELOCATION DISPUTES.
Oliver Powell, University of Oxford
I – Introduction
The question of whether a primary carer should be permitted to relocate with the child
outside the United Kingdom against the wishes of a non-resident parent is a fraught
one. 1 These relocation disputes have been described as the ‘San Andreas fault of
children’s law’. 2 Indeed, they raise some of the most complex questions in family law.
This paper seeks to demonstrate that the approach to relocation disputes in England
and Wales does not necessarily produce results that are in the child’s best interests.
This proposition will be developed in three stages. Firstly, it will be evidenced that
decisions from the Court of Appeal (CA) are sending messages to trial courts as to
specific factors they should or should not focus on in relocation disputes. It will be
argued that this approach prevents a careful evaluation of each case, and risks leading
to a conclusion contrary to the child’s best interests. Secondly, an assessment of social
science research from other areas of child law will be undertaken to demonstrate that
what is in the child’s best interests in relocation disputes is complex: this complexity
militating against the CA’s inflexible approach to relocation disputes. Finally, the
approach to relocation disputes in New Zealand, Australia and Canada will be
examined; this enquiry showing that, although each jurisdiction focuses on the child’s
best interests as the main consideration, none approach the question like England and
Wales.
Given these findings the paper will conclude that the current approach to relocation
disputes in England and Wales should be reconsidered, as it risks producing results
that are not in the child’s best interests. In light of this, alternative approaches will be
evaluated, with the Declaration developed at the Conference on International
Relocation in Washington considered the best alternative.
II – Current Law
Applications to relocate with a child from the UK where a residence order is in force
are governed by section 13(1)(b) of the Children Act 1989: the child’s welfare being
the paramount consideration. 3 The now-leading case on this issue is Payne v Payne, 4
involving an appeal by the father against his ex-wife’s permission to relocate with
their child to New Zealand. The mother was the child’s primary carer, the father
enjoying substantial contact. Dismissing the appeal, the CA considered the approach
taken by UK courts to relocation applications outside the jurisdiction, with the
President and Thorpe LJ giving full judgments. However, as George states, it is
1 The primary carer is usually the mother, and the non-resident parent the father. For convenience this
is assumed herein.
2 Richard Chisholm, ‘The Paramount Consideration: Children’s Interests in Family Law’ (2002) 16
AJFL 87, 107
3 Children Act 1989, s 1(1)
4 [2001] EWCA Civ 166 (CA)

Reconsidering the Judicial Approach Adopted in Relocation Disputes
Thorpe LJ’s approach that has ‘dominated the English approach’ to relocation
disputes. 5
Thorpe LJ explained how relocation cases have been decided consistently on two
principles. Firstly, that the child’s welfare is the paramount consideration. Secondly,
that refusing the primary carer’s application to relocate is likely to impact
detrimentally on the welfare of the child. Therefore, relocation should be permitted
unless contrary to the child’s welfare. 6 Bearing these principles in mind, Thorpe LJ
laid out a ‘discipline’ for judges to apply in relocation cases to prevent ‘too
perfunctory an investigation’ stemming from an assumption that ‘the mother’s
proposals are necessarily compatible with the child’s welfare.’ 7
III – Criticism
Payne has been strongly criticized. Hayes argues that Thorpe LJ’s ‘discipline’
imposes ‘a gloss on the welfare principle’ 8 causing the courts to ‘treat the impact of
his ruling on the mother as the most significant consideration’. 9 Hayes stresses the
need to allow judges to approach the question with an open mind considering ‘all of
the factors in the welfare checklist’ to reach a conclusion in the child’s best
interests. 10 Perry questions whether Payne truly puts the child’s interests as the
paramount consideration. 11 Furthermore, in F v M Mostyn J states that relocation
disputes, with their heavy emphasis on the emotional reaction of the primary carer,
put ‘an illegitimate gloss on the purity of the paramountcy principle’. 12 Reflecting on
this, we turn to consider the three apparent messages that the CA are sending to trial
courts, and whether they are conducive to promoting the child’s best interests.
III(a) – The mother’s wishes
Given the mother-child bond of love, it seems uncontroversial to state that a mother’s
wish to relocate will often correlate with the child’s best interests. However, it is
submitted that the approach advocated in Payne has led the CA to focus unduly on the
mother’s wish to relocate, sending messages to trial courts to do the same and
blinding them to a full and proper assessment of the child’s welfare. This concern is
evident in a number of cases.
In Re H (A Child) Wilson LJ refused the father’s appeal, listing ten factors supporting
the mother’s wish to relocate, stating that it was ‘natural’ that ‘she would wish to
5 Robert George, ‘Reassessing Relocation: A Comparative Analysis of Legal Approaches to Disputes
Over Family Migration After Parental Separation in England and New Zealand’ (DPhil thesis,
University of Oxford 2010) 98
6 Payne (n 4) [26]
7 Ibid, [40]-[41]
8 Mary Hayes, ‘Relocation cases: is the Court of Appeal applying the correct principles?’ [2006] CFLQ
351, 359
9 Ibid, 360
10 Ibid, 351
11 Alison Perry, ‘Case Commentary: Leave To Remove Children From The Jurisdiction’ [2001] CFLQ
455
12 [2010] EWHC 1346 (Fam) [8]
2

UK Law Students’ Review – 2013 – Volume 1, Issue 2
return home’ to her native country. 13 No comparative list is developed for the father.
This signals to trial courts to focus on the mother’s wishes. Equally concerning is the
case of Re B (Children), Re S (Child) 14 where Thorpe LJ allowed the mother’s appeal
to relocate, endorsing her statements that Australia is ‘where my future well-being
will be. I feel I will be happy there’. 15 The language is centred on her well-being and
wishes, not the child’s. The approval of such comments is concerning: nowhere is the
wish to relocate expressed in terms of the child’s well-being. This sends powerful
signals to trial courts that the mother’s wishes are of paramount concern not the
child’s. Furthermore, in Re B (Children) Thorpe LJ criticized the trial judge for
placing significance on a hypothetical question that the mother could not answer
concerning her backup plans if the children did not settle after relocating. 16 The
message sent to trial courts is clear; focus on the mother’s wishes and do not ‘stresstest’
them. This is concerning given the question relates directly to the child’s welfare.
The mother’s wishes may correlate with the child’s best interests, however the
messages from the CA distort and narrow the enquiry by placing emphasis on
acceding to them. This risks blinding trial courts to a proper enquiry of what is in the
child’s best interests. Interrelated to the mother’s wish to relocate is the impact of
having those wishes refused. This is a prominent factor in relocation cases that
requires analysis.
III(a)(1) – Impact of refusal
The impact of refusing a mother’s proposal to relocate, and the consequent impact on
the child’s welfare, has ‘consistently been stressed as the key factor’ by the CA in
relocation disputes; 17 unsurprising given judicial utterances that this is the ‘major
question’. 18 Undoubtedly, the mother’s devastation flowing from refusal may impact
on the child’s well-being. However, this unwavering message from the CA has the
potential to blind trial courts’ assessment of what may actually be in the child’s best
interests. This concern relates particularly to the question of the mother’s ability to
cope with the refusal - something the current approach of the CA arguably overlooks.
In Re W (Leave to Remove), Thorpe LJ criticized all parties for not focusing on the
impact of refusal on the mother. 19 However, as stated, the impact on the mother and
consequent impact on the child will depend on the mother’s robustness. Crucially in
Re W the trial judge, having assessed the mother in the witness box, concluded that
she had ‘an exceptionally strong personality’; 20 implying she would cope with refusal
and consequently the impact on the child would be less significant. Thorpe LJ’s
disregard for this finding ignores the trial court’s careful assessment and encourages
other trial courts to follow suit. This risks preventing a proper analysis of the degree
13 [2010] EWCA Civ 915 (CA) [29]
14 [2003] EWCA Civ 1149 (CA)
15 Ibid, [22]
16 [2004] EWCA 956 (CA) [13]
17 George (n 5) 98
18 Re G (Removal from Jurisdiction) [2005] EWCA Civ 170 (CA) [19]
19 [2008] EWCA Civ 538 (CA) [20]
20 Ibid, [19]
3

Reconsidering the Judicial Approach Adopted in Relocation Disputes
to which the child’s welfare will actually be impacted by the mother’s reaction to
refusal. Given the importance of this factor to the court’s decision, a careful
assessment free from generalizations is vital in reaching a decision in the child’s best
interests. Furthermore, it sends the message to trial courts that they must conclude that
the mother has more than an ‘exceptionally strong personality’ otherwise their
decision is likely to be appealed, potentially altering their decision making process.
III(a)(2) – The non-resident parent
Coupled to the messages discussed, the CA also appear to pay little attention to the
father-child bond. As Wall LJ states in Re D (Children), there is a ‘perfectly
respectable argument’ that Payne ‘ignores or relegates the harm done to children by a
permanent breach of the relationship which children have with the left behind
parent’. 21 Indeed, in Re H, having cited ten reasons to permit relocation, Wilson LJ
offers one line in recognition of the excellent father-child relationship, and the ‘grave
truncation’ in contact that would result from the move. 22 Context is important. One
line on the father-child relationship in the context of a list of factors in favour of
allowing relocation sends a clear message that although relevant, the father-child
bond is less important. Furthermore, in Re B & Re S there is no reference to the
father-child relationship whatsoever. 23
Conversely, where the trial judge relies upon the reduction of father-child contact as a
reason for refusal, the CA subject that decision to forensic analysis, unpicking the
reasoning: Re S (Children). 24 This approach sends a strong message to trial courts that
they must have particularly good reasons to refuse an application on this ground.
The CA’s approach to the father-child bond sends messages to trial courts to give
little weight to this factor. This contrasts with the weight accorded to the mother’s
wishes and the impact of refusal on her. Undoubtedly, these cases may have been
rightly decided, but the blanket messages that emanate from the CA risk instructing
trial courts as to the approach to take in every case, distorting a careful assessment in
these finely balanced, fact sensitive cases. This risks producing results contrary to the
child’s best interests. Given these strong messages favouring the mother’s application
to relocate, one would expect cogent evidence that relocation is generally in the
child’s best interests. The picture, however, is not so clear.
IV – Social Science Research
The paucity of research on relocation disputes is alarming. Freeman states, ‘we don’t
know’ whether relocation is in the child’s best interests. 25 Geldof disagrees, arguing
that empirical evidence shows that the current ‘pro-relocation’ stance is ‘wholly
destructive to a child and its family’. 26 However, Geldof’s proposition rests upon
research relating to shared residence and contact where, as Herring and Taylor
21 [2010] EWCA Civ 50, [33]
22 Re H (n 13) [30]
23 Re B, Re S (n 14)
24 [2004] EWCA Civ 1724 (CA) [10-16]
25 Marilyn Freeman, ‘Relocation and the Child’s Best Interests’ [2010] IFL 247, 255
26 Michael Robinson, ‘Family Law: Relocation The Case for Reform’ (2011) 2
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UK Law Students’ Review – 2013 – Volume 1, Issue 2
highlight, there is ‘so little agreement between researchers’. 27 Nevertheless, cautious
conclusions can be extracted from residence and contact research that may aid in
answering whether the current approach to relocation disputes is in the child’s best
interests. Research regarding the impact on the child’s welfare from a truncation of
contact with the non-resident parent, and the impact on the mother of having to
facilitate contact with the father after a court dispute, are both particularly relevant.
IV(a) – Residence and contact research
As Herring states, the dominant view in England and Wales ‘is that contact between a
child and both parents is in general beneficial.’ 28 In the context of joint residence, the
government have stressed that ‘children whose fathers have been actively involved in
their lives experience better outcomes’. 29 Furthermore, Gilmore highlights research
studies that applaud the merits of shared residence for child welfare. 30 These findings
contrast with the fleeting consideration given to the father-child relationship in
relocation disputes. However research from the USA appears to conclude that contact
frequency is ‘not a good predictor of children’s well-being’; 31 this seemingly
supporting the mother’s application to relocate. Nevertheless, Gilmore’s review of
contact research indicates that ‘it is not contact per se but the nature and quality of
contact that are important to children’s adjustment’ 32 and as Trinder states, ‘a certain
amount of time [together] will be needed to enable a quality relationship to
develop’. 33 This led to a position where fathers with high frequency contact were
likely to have higher-quality relationships with their child. 34 These findings militate
against the messages from the CA to ‘gloss over’ the father’s importance, as the
father-child relationship may be very important to children’s welfare.
This conclusion cannot be divorced from the influence that the inter-parental
relationship has on contact quality. Relocation disputes often lead to parental
animosity. Refusal of the mother’s application is unlikely to ease this animosity. As
Gilmore states, ‘when parents are antagonistic to one another frequent visitation may
do more harm than good.’ 35 These findings could prove detrimental to any benefit the
child gets from maintaining contact with the father. Similar conclusions are drawn in
shared residence research. 36 Indeed, Harris-Short states that the ‘tensions and
complexities of a joint residence regime….may actually increase rather than decrease
hostility between the parents.’ 37
27 Jonathan Herring and Rachel Taylor, ‘Relocating relocation’, [2006] CFLQ 517, 521
28 Jonathan Herring, Family Law, (4 th Edition, OUP 2008) 537
29 Sonia Harris-Short and Joanna Miles, Family Law Text, Cases, and Materials (OUP 2007) 839
30 Stephen Gilmore, ‘Contact/shared residence and child well-being: research evidence and its
implications for legal decision-making’ [2006] JLPF 344, 356-357
31 Ibid, 348
32 Ibid, 358
33 Liz Trinder, ‘Shared residence: a review of recent research evidence’ [2010] CFLQ 475, 486
34 Gilmore (n 30)
35 Ibid, 351
36 Trinder (n 33)
37 Harris-Short (n 29) 845
5

Reconsidering the Judicial Approach Adopted in Relocation Disputes
IV(b) – Social science research conclusions
Assessing the research as a whole, two cautious conclusions relevant in relocation
disputes can be reached. Firstly, it is the quality of contact with the father that is
important for the child’s welfare: that quality being engendered through regular
contact. Against this is the potential for a hostile inter-parental relationship stemming
from refusing relocation, and the effect this may have on the child’s welfare.
Nevertheless, one clear conclusion is that the overall picture shows ‘a complex
interaction of family dynamics’. 38 This complexity does not advocate
generalizations. 39 It is submitted that the inflexible messages from the CA to trial
courts fail to account for this complexity, and risk producing a judicial atmosphere
supportive of generalizations in cases where acute complexities must be balanced and
evaluated in order to reach a conclusion in the child’s best interests.
V – Relocation in Other Jurisdictions
In asking whether the approach to relocation disputes in England and Wales produces
decisions in the child’s best interests, an analysis of the approach taken to relocation
in other common law jurisdictions is beneficial. New Zealand, Australia and Canada
put the child’s best interests at the centre of the enquiry yet, as Boshier states, ‘there
are some significant differences’ between the approaches they take to answering the
question compared to England and Wales. 40
V(a) – New Zealand
Significantly, in D v S the New Zealand Court of Appeal rejected the approach in
Payne, preferring an all-factor child centred approach, 41 with no a priori assumptions
regarding the impact of refusal. 42 George suggests two trends are emerging in New
Zealand relocation disputes. Firstly, that the primary carer’s well-being is increasingly
given little presumptive weight, and secondly that importance is given to children
having relationships with both parents; 43 trends that stand in stark contrast to those
developed in England and Wales.
Recent New Zealand High Court decisions appear to corroborate George’s
conclusions. In L v B, the court considered that relocation should be refused as
insufficient consideration had been given to the need for both parents’ involvement in
the child’s life and the need to preserve and strengthen family relationships. 44
Similarly, in B v B the court criticized the first instance decision for not giving proper
weight to the child’s interests in having a relationship with his father. 45 In LH v PH
the mother’s belief that she would be devastated by a refusal to relocate was given
38 Gilmore (n 30) 358
39 Ibid, 358–359
40 Peter Boshier, ‘Have Judges Been Missing the Point and Allowing Relocation Too Readily?’ [2010]
IFL 311, 312
41 [2002] NZFLR 116 (CA) [46]-[47]
42 Ibid, [32]-[33]
43 George (n 5) 123
44 [2010] NZHC 53, [104]
45 [2008] NZHC 664, [59]
6

UK Law Students’ Review – 2013 – Volume 1, Issue 2
little consideration. 46 Irrefutably, the New Zealand approach to relocation disputes
seems distinct from the approach adopted in England and Wales.
V(b) – Australia
The legislative framework governing relocation disputes in Australia has recently
changed. Nevertheless, the child’s best interests remain paramount. Easteal and
Harkins state that the ‘changes give greater emphasis to the child’s right to have a
relationship with both parents’. 47 Furthermore, the new shared care provisions appear
to promote a strong parent-child relationship. Overall, George states that Australia
adopts an all-factor approach, with the statutory provisions militating against
relocation. 48
Recent decisions of the Australian Court of Appeal highlight a different approach to
that adopted in England and Wales. Indeed, the lack of regard for the impact of
refusal on the mother is noteworthy. As Easteal and Harkins state, references to this
are made ‘indirectly and as part of a broader enquiry’: 49 scepticism of placing weight
on this consideration is seen in Taylor & Barker where it was stressed that ‘expert
opinion based on observation and fact rather than conjecture’ are needed to permit
consideration of this factor as relevant. 50 Indeed, fewer cases are mentioning the
mother’s happiness at all. 51
What is considered important is the time a child spends with each parent and the role
they play in the child’s life: Winter & Winter. 52 Additionally, the importance of a
‘meaningful relationship’ with both parents is stressed: 53 though what constitutes a
‘meaningful relationship’ has been broadly interpreted. 54 As with New Zealand, what
emerges in relation to Australia’s approach to relocation disputes is quite distinct
from that of England and Wales.
V(c) – Canada
As Chamberland indicates, the law on relocation in Canada has oscillated between
various approaches, 55 with it currently being ‘extremely flexible’. 56 The leading case
is Gordon v Goertz which places the best interests of the child as the ultimate
question. 57 An ‘individualized assessment’ is required with no presumptive weight
46 [2007] NZHC 187, [41]
47 Patricia Easteal and Kate Harkins, ‘Are we there yet? An analysis of relocation judgments in light of
changes to the Family Law Act’ [2008] AJFL 259, 262
48 George (n 5) 20
49 Easteal (n 47) 272
50 [2007] FamCA 1246 [128]
51 Easteal (n 47) 272
52 [2008] FamCAFC 159 [81]
53 McCall & Clark [2009] FamCAFC 92 [50]
54 Easteal (n 47) 268
55 Jacques Chamberland, ‘The Canadian Law of Parental Relocation’ [2010] IFL 17, 17
56 Ibid, 23
57 [1996] 2 SCR 27 [50]
7

Reconsidering the Judicial Approach Adopted in Relocation Disputes
given to any factor: though the views of the custodial parent are given serious
consideration. 58
Ontario and British Columbia case law reach some interesting conclusions. In Elliot v
Turcotte the court warned of permitting relocation where the father had good contact
with the child. 59 Karpodinis v Kantos also stressed that maximum contact with both
parents was generally in the best interests of the child. 60 Furthermore, in Falvai v
Falvai, the need to maintain the father-child relationship was seen as a ‘determining
factor’. 61 Little significance is placed on the impact of refusal though it has been
recognized as a factor which may be relevant: Bjornson v Creighton. 62 Unlike in
England and Wales, Canadian cases emphasize the disruption to the child of
relocation: Young v Young. 63
V(d) – Conclusions
Each jurisdiction addresses the question of the child’s best interests differently in
relocation disputes. Nevertheless, two themes emerge. Firstly, less weight is given to
the impact of refusal on the mother in comparison to the approach in Payne. Secondly,
the desire to promote a child’s relationship with both parents appears – at least in New
Zealand and Australia – to be gathering momentum. These disparate approaches are
perhaps due to the lack of evidence to rest principles for deciding these disputes upon.
However, it is submitted that this comparative analysis adds weight to the proposition
that the current approach in England and Wales is not necessarily right and risks
failing to promote the child’s best interests.
VI – Time for Change?
In light of the analysis above, the proposition for change can be simply put. The
messages sent from the CA to the trial courts instruct them to approach the relocation
enquiry in a particular manner: focusing on the mother’s wishes and the impact of
refusal, whilst ignoring the importance of the father. This distorts the welfare enquiry,
potentially producing results contrary to the child’s best interests, as general messages
as to how to approach a case are being forced upon disputes with unique facts. The
complexity of the enquiry is highlighted by the social science research, which
underlines the importance of a careful examination of the facts free from
generalizations. Finally, the approaches in other jurisdictions value a broad ‘all-factor’
enquiry, with no tendency to promote the mother’s wishes or the impact of refusal
above other factors, often stressing the importance of both parents to the child’s
welfare. These three elements together provide a strong argument in favour of
departing from Payne. The judicial approach to relocation disputes must therefore be
reconsidered.
58 Ibid, [48]
59 [2009] ONCA 240 [18]
60 [2006] BCCA 272 [19]-[20]
61 [2008] BCCA 503 [16]
62 [2002] OJ No 4634 [28]
63 [2003] ONCA 3320 [28]
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UK Law Students’ Review – 2013 – Volume 1, Issue 2
VII – Reconsidering Relocation
Beneath the approach enunciated in Payne rests a laudable objective: the paramountcy
of the child’s welfare. Despite its apparent focus on this virtuous goal, the welfare
principle has been subject to criticism that must be borne in mind when considering
alternatives. The most prominent in the context of relocation disputes is the ‘lack of
transparency’ criticism. As Reece states, the welfare principle permits the untested
judicial ideology to ‘exert an influence from behind the smokescreen of the
paramountcy principle’. 64 In the context of relocation disputes the concern is surely
that the courts are ‘easily persuaded that the child is better cared for by the mother
than by the father.’ 65 Bearing this criticism in mind, alternatives can be considered.
VII(a) – A rights-based approach
Harris-Short states that for many the introduction of the Human Rights Act 1998
‘promised long overdue changes in the judiciary’s approach to legal disputes
concerning the family’. 66 Flowing from this, there are two strong arguments that can
be made for a rights-based approach to relocation disputes. Firstly, the welfare
principle is ‘incompatible with the demands of Article 8’ of the European Convention
on Human Rights, 67 and must be reinterpreted to take account of individual’s rights. 68
However, the reality is that the judiciary has not done this. 69 Harris-Short laments the
fact that the domestic courts, in the private law context, have ‘generally failed to
engage’ with the issue. 70
Secondly, the rights-based approach appeals to reason. Herring and Taylor advance a
cogent three-step rights-based approach to relocation disputes. 71 Firstly, each person’s
rights should be individually weighed. Secondly, the justification for interference with
the right considered, and the proportionality test applied. Thirdly, an ‘ultimate
balancing exercise’ should be undertaken; the balancing exercise being workable by
‘focusing on the values that underlie the right’. 72 In the context of relocation, ‘the
court should consider which interference will constitute a greater blight on the vision
of the good life that each had’ (or the child may have): 73 the question being ‘how far
the court’s decision will interfere with that vision’. 74 This approach Herring and
Taylor argue, will normally produce results similar to the current approach. However,
64 Helen Reece, ‘The Paramountcy Principle. Consensus or Construct?’ in Sonia Harris-Short and
Joanna Miles (eds), Family Law Text, Cases and Materials (OUP 2007) 598
65 Herring (n 28) 512
66 Sonia Harris-Short, ‘Family law and the Human Rights Act 1998: judicial restraint or revolution’
[2005] CFLQ 329, 329
67 Shazia Choudhry and Helen Fenwick, ‘Taking the rights of parents and children seriously:
confronting the welfare principle under the Human Rights Act’ [2005] OJLS 453, 479
68 Harris-Short (n 66) 344
69 Choudhry (n 67) 480
70 Harris-Short (n 66) 347
71 Herring Taylor (n 27)
72 Ibid, 526
73 Ibid, 527
74 Ibid, 527
9

Reconsidering the Judicial Approach Adopted in Relocation Disputes
they believe it will make a difference in some cases and provide a more transparent
reasoning process. 75 Conversely, Choudhry and Fenwick believe a rights-based
approach will produce different results. 76
This approach is persuasive. Nevertheless, the principal reason for not fully
advocating a rights-based approach in this paper is that ‘the welfare principle sends an
important symbolic message. It recognizes the value, the importance and the
vulnerability of children’. 77 Children are vulnerable and the law should protect them.
This is a moral argument upon which reasonable opinions can differ. However, ‘if the
welfare principle does anything to focus the minds of the parents on the child’s
welfare rather than their own rights then it has great value’. 78 Furthermore, the
potential for a ‘misuse of rights’ under a rights-based approach is concerning. As
Herring and Taylor state, it may lead adults to pursue their own agenda. 79 It is hard to
forget the comments of the mother in Re B, Re S that Australia is ‘where my future
well-being will be. I feel I will be happy there’. 80 A rights-based approach will
arguably promote these selfish statements, taking the focus off the child.
Notwithstanding these concerns, it is considered that greater regard must be had for
the 1998 Act. Therefore, a balance between the welfare principle and a rights-based
approach is required. This, it is submitted, is found in the Washington Declaration.
VIII – The Washington Declaration
The Conference on International Relocation in Washington developed a Declaration
that has been called an ‘interesting, and potentially momentous, development’. 81 It is
submitted that with two amendments, this Declaration provides the best framework
for resolution of relocation disputes.
VIII(a) – The Declaration explained
Point three of the Declaration states that the best interests of the child should be the
paramount (primary) consideration. 82 Point four provides a non-exhaustive list of
thirteen factors for the judge to consider. Noteworthy is the omission of any explicit
reference to the impact of refusal on the primary carer, the recognition given to the
role that each parent and their families have played in the child’s life and the nature of
the inter-parental relationship.
VIII(b) – Discussion
Four issues arise from the Declaration that require discussion. Firstly, it is apparent
from Point three that the child remains the centre of the enquiry. As argued, this is
considered morally correct. However, the Declaration offers a choice between
75 Ibid, 527
76 Choudhry (n 67) 491
77 Jonathan Herring, ‘Farewell Welfare?’ [2005] JSWFL 159, 168
78 Ibid, 168
79 Herring (n 27) 530
80 Re B, Re S (n 14)
81 F v M (n 12) [10]
82 Washington Declaration on International Family Relocation [2010]
10

UK Law Students’ Review – 2013 – Volume 1, Issue 2
‘paramount’ and ‘primary’ when considering the child’s best interests. It is submitted
that the child’s best interests should be the ‘primary’ consideration; thus accounting
for the 1998 Act. Indeed, this is one re-interpretation of ‘paramount’ suggested as
possibly compatible with the 1998 Act. 83 This alteration would permit greater
recognition of the parent’s rights and interests pursuant to the demands of the rightsbased
era, whilst maintaining the focus on the child.
Secondly, Point three of the Declaration expressly rejects any presumption for or
against relocation. Although Payne similarly rejects a presumption in favour of
relocation, 84 it is hard to argue in light of the academic critique and the analysis above
that the current approach to relocation is not, at the very least, tendentious: a mother’s
reasonable proposals to relocate normally being granted. 85 This provision would press
the judicial ‘reset button’ and help restore the need, as Hayes states, for justice to be
even-handed. 86 This is coupled with express recognition in Point three that the weight
to be given to any one factor will vary from case to case.
Thirdly, the thirteen criteria provided to aid judges in their assessment of the case will
produce a more transparent reasoning process, soothing the transparency criticism that
attends the welfare principle. 87
Fourthly, the impact of refusal on the mother is only implicitly recognized in factor
(viii) of Point four of the Declaration. Despite concerns raised of an over-emphasis on
this factor, it is nevertheless considered that the impact of refusal should have
independent recognition. Throughout this paper, it has been recognized that in certain
cases, this factor may be significant. However, by placing it equally among the other
thirteen factors, it would sit as a consideration in the enquiry not the consideration,
permitting the judge to place emphasis on it if the facts suggest it is appropriate. It is
for these four reasons that the Declaration is considered the best judicial approach to
“external” relocation disputes in England and Wales.
IX – Conclusion
Given the regularity with which the judiciary pronounce how difficult relocation
disputes are, it would be easy – almost understandable - to conclude that there is no
answer and that searching for a better solution is hopeless. But perseverance is
necessary. This paper has sought to illustrate that the current approach to relocation
disputes risks producing results that are not in the child’s best interests. This has been
demonstrated through a three-stage process: these three-stages combining to produce
an argument in favour of reconsidering the approach to relocation.
In light of this, alternative approaches have been considered. Reconsidering the
judicial approach is far from straightforward. These cases are frighteningly complex -
any alternative professing a simple answer should be viewed with caution.
Furthermore, the paucity of research on relocation casts doubt on any suggested
alternative because we know so little about the consequences of these decisions.
83 Harris-Short (n 29) 616
84 Payne (n 4) [40]
85 Herring (n 28) 534
86 Hayes (n 8) 360
87 Text to (n 64)
11

Reconsidering the Judicial Approach Adopted in Relocation Disputes
Nevertheless, it is believed that the approach encompassed in the Washington
Declaration offers a guiding light for the resolution of these disputes: a light that
focuses on the best interests of the child whilst identifying the reality of the rightsbased
era. It provides the best opportunity to produce a result in the child’s best
interests. Perhaps in these most tragic and complex disputes, this is all that can be
hoped for.
12

GOOGLE’S DECISION TO PERMIT COMPETITORS AND RIVALS TO
PURCHASE KEYWORDS OF TRADEMARKS ACCEPTABLE AS LONG AS
IT DOES NOT CAUSE CONSUMER BRAND CONFUSION
Ren-En Lim, Liverpool University
I – Introduction
Google is the world’s most widely-used search engine with an audience share of over
80% of global internet users. It is therefore not surprising that advertisers have
recognised Google’s tremendous potential to reach out to new audiences both
nationally and internationally, and Google has cleverly exploited this quality by
launching its “AdWords” service. Proponents of “AdWords” laud it as a bastion for
free competition and freedom of speech; Opponents (amongst them trademark
owners), however, deride Google AdWords for infringing trademarks (and thereby
undermining the incentive for producers to innovate), and for not recognising that the
protection of a trademark’s ‘indicating origin, advertising, communication and
innovation’ functions may actually be helpful in assisting producers to expand into
new markets and in aiding consumers confronted with a wider range of choices. It is
this inherent tension which the courts (both UK and ECJ) face when deciding cases
involving AdWords. In this paper, it will be argued that the discussing statement is
accurate as a likelihood of confusion is necessary before infringement actions can be
brought under s.10(2) of the Trademarks Act 1994 (“TMA”). Moreover, although
courts have recognised in principle that confusion is presumed under s.10(1) and that
infringement of the section may occur if there is misuse of the trademark that either
its indicating origin, advertising or investment functions are undermined, this is
however qualified by the deliberate setting of a high evidentiary threshold for
infringement of such functions to be found. With regards to s.10(3), a similar point
will be made: confusion is not necessary for an action to be brought under the section,
but there is also a high evidentiary threshold to be fulfilled before trademark
proprietors succeed in an infringement action under it. This therefore gives rise to a
plausible assertion that as long as there is no likelihood of confusion, there is little for
rival advertisers who purchase keywords of their competitor’s trademark to be
worried about from a legal copyright infringement perspective.
I(a) – What is Google AdWords?
At its simplest, Google AdWords manipulates search results to artificially prioritise
an advertiser’s website over other possible results. 1 An advertiser purchases the
keywords with which he wants his website and AdWords advertisements to be
associated, which will link his advertisement to the purchased keywords. 2 When
someone uses a Google program that runs a search, his advertisement will appear
alongside other search results. The advertiser is able to decide on a maximum billing
rate, which is one of two factors Google use to determine where on the search result
pages the advertisement will appear. 3 The value of AdWords thus lies in the fact that
1 Ashley Tan, ‘Google AdWords: Trademark Infringer or Trade Liberalizer?’ (2010) 16 Mich.
Telecomm Tech L Rev, 473.
2 ibid.
3 The other factor being the “Quality Score” of the advertisement, a multi-criteria scoring system that
attempts to objectively evaluate how relevant – or how effective – an advertisement is to the search
results with which it has been associated in the past.

14
The Legality of Google AdWords
Google allows its keyword-linked advertisements to circumvent Google’s usual page
ranking system for non-sponsored links. 4 Since the advertisements appear beside
search results that have been subjected to the normal page ranking algorithms and
often do not explicitly indicate that they are sponsored links, Google users may be
misled to assume that the advertisements are the most relevant results. 5 The
advertisement thus trades on Google’s reputation for delivering the most appropriate
search results to entice users to click on them, while making a potential global
advertising audience available at very low financial and technical cost. 6
I(b) – Google’s policy towards the use of its AdWords service
Pertaining to Google’s new trademark policy in the UK towards AdWords, third
parties will be able to bid and use competitors’ marks as AdWords keywords so as to
direct traffic to their own websites, providing there are no risks of confusion or unfair
competition. 7 This means that Google will continue to investigate complaints about
trademarks in advertising but will no longer complain about trademarks used as
keywords.
I(c) – The relationship between EU law and UK law
Trademark law is only partially harmonised at the EU level, and the application of
Union law (upon a ruling of the European Court of Justice (“ECJ”)) remains in the
hands of the national courts of the EU Member States. ECJ Cases will be referred to
in this paper as and when necessary as it lays down the general framework of how
s.10(1), s.10(2) and s.10(3) of the TMA is to be applied by the UK Courts.
II – The position under UK Law
There are four ways in which a party can be found liable for trademark infringement
in the UK. The first three ways are derived from s.10 of the TMA whilst the fourth is
a civil action in Tort. Each will be discussed in detail and considered in relation to the
potential liability of Google AdWords under them.
II(a) – Section 10(2) – Likelihood of Confusion; Likelihood of Liability
Section 10(2) refers explicitly to the likelihood of ‘brand consumer confusion’. The
precise meaning of confusion is not in question; on the other hand, the question of
how confusion is to be assessed under s.10(2) has been addressed by the courts. In the
UK case of Och-Ziff 8 , the High Court noted that the principles applying to
infringement under the ‘registration context’ was also applicable to that under the
‘infringement context’ (of which s.10(2) deals with). 9 In so doing, the High Court
4 Supra Note 1.
5 ibid.
6 ibid.
7 Amelie Labbe-Thompson, ‘Google’s revised AdWords policy causes industrial divide’ (2010) E.C.L.
&P 12(8).
8 [2010] EWHC 2599.
9 The only difference being that confusion under the infringement context only requires consideration
of the use that has actually been made of the sign in context, while confusion under the registration
context requires consideration of notional fair use of the mark applied for.

UK Law Students’ Review – 2013 – Volume 1, Issue 2
summarised what they thought to be the ECJ’s overall approach towards confusion
under s.10(2) for both word and composite marks, with reference to the cases of
Portakabin v Primakabin 10 and O2 v Hutchinson 11 . As this paper is dealing with
Google AdWords, only the relevant parts of the guidance dealing with word marks
will be addressed.
From the outset, the likelihood of confusion must be appreciated globally. There must
be confusion to the average consumer of the goods or services in question, who is
deemed to be reasonably well-informed, circumspect and observant, but who rarely
has the chance to make direct comparisons between marks and must instead rely upon
the imperfect picture of them he has kept in his mind. Moreover, it should be noted
that the average consumer normally perceives a mark as a whole and does not analyse
its various details. 12 Additionally, a lesser degree of similarity between the marks may
be offset by a greater degree of similarity between the goods and vice versa. 13 As for
highly distinctive trademarks, the courts have also recognised that there is a greater
likelihood of confusion. This is, however, balanced against the recognition by the
courts that mere association, in the sense that the later mark brings the earlier mark to
mind, is not sufficient to constitute confusion for the purposes of s.10(2). In other
words, the reputation of a trademark does not provide grounds for presuming a
likelihood of confusion simply because of a likelihood of association in the strict
sense. Lastly if the association between the marks causes the public to wrongly
believe that the respective goods or services come from the same or economically
linked undertakings, then it would lead to a finding of confusion under s.10(2).
It should be noted that although the above guidance elaborates on the factors and
refines and articulates the process of analysis to which those factors are subjected, the
High Court in Lewis v Client Connection 14 cited with approval Jacob LJ’s earlier
observation in Reed v Reed 15 to the effect that whichever approach one uses, one is
essentially taking a holistic view as to whether there is significant consumer
confusion. It is therefore a value judgment to be drawn from all the circumstances,
and as such, further conceptual over-elaboration may tend to obscure (rather than
elaborate) and is accordingly unhelpful.
It should also be noted that consumer brand confusion includes that of initial interest
confusion, which refers to confusion on the part of the public as to the trade origin of
the goods or services in relation to which the impugned sign has been used arising
from use of the sign prior to purchase of those goods or services. 16 This means that
there can be a likelihood of confusion under s.10(2) at the point when a consumer
10 [2011] Bus L.R. 1339.
11 [2009] Bus L.R. 339.
12 Such as that in Och-Ziff, where the High Court pointed out that the words ‘OCH’ and ‘Och’ were
more likely than not to lead to consumer brand confusion.
13 Such was the case in Och-Ziff, where the High Court rejected defendant’s counsel submission that
the addition of the word ‘CAPITAL’ sufficed to avoid a likelihood of confusion. The Court explained
that the word ‘CAPITAL’ is descriptive, or at least non-distinctive, for financial services and in
particular investment services, for which both the plaintiffs and defendants were involved in.
14 [2011] EWHC 1627.
15 [2004] RPC 4.
16 Supra Note 8, at [87].
15

16
The Legality of Google AdWords
views an advertisement, whether or not the advertisement leads to a sale and whether
or not the consumer remains confused at the time of any such sale. As noted by the
courts, although there may be no diversion of sales where initial interest confusion
arises, the proprietor may still be affected in 2 other ways, namely (a) a confusing
advertisement may affect the reputation of the trademarked goods and services and
(b) such confusion may erode the distinctiveness of the trademark. Thus, any use of
“AdWords” which results in the above-mentioned effects will be regarded as having
caused initial interest confusion.
II(b) – Section 10(1) – Confusion presumed; Issue is whether specific functions of
trademark are infringed
Under s.10(1), it is important to note that in double identity cases falling within the
section a likelihood of confusion is presumed. It is therefore immaterial whether there
is a likelihood of confusion in fact, although the jurisprudence of the ECJ does require
that there be an effect on at least one of three functions of the trademark (i.e.
indicating origin, advertising or investment). The law regarding these three functions
will be assessed as they pertain to Google AdWords in order to determine if Google
AdWords infringes s.10(1).
II(b)(1) – Indicating Origin Function
The indicating origin function is infringed if the advertisement (1) suggests that there
is an economic link between the advertiser and the proprietor of the trademark or (2)
while not suggesting the existence of an economic link, is vague to such an extent on
the origin of the goods or services at issue such that reasonably well-informed and
reasonably observant internet users are unable to determine, or enables them only
with difficulty, on the basis of the advertising link and the attached commercial
message, whether the advertiser is an independent third party or whether, on the
contrary, it is economically linked to the trademark proprietor. 17
Pertaining to AdWords, the fact that the advertisement appears immediately after the
trademark has been entered as a search term and is displayed at a point when the
trademark is (in its capacity as a search term) also displayed on the screen may cause
the internet user to be mistaken as to the origin of the goods or services in question.
This is however counter-balanced by the fact that the assessment of this mistake is
based on a reasonably well-informed internet user. 18 Thus, the fact that some internet
users may have had difficulty grasping that the service provided by the third party is
independent of that of the trademark proprietor is not sufficient basis for a finding that
the indicating origin function has been infringed.
II(b)(2) – Advertising Function
As for the advertising function, the ECJ has noted both in Google France 19 and
Interflora 20 that a trademark may also be used for advertising purposes designed to
inform and persuade consumers. The trademark owner may thus be entitled to prevent
17 See Interflora [2011] Case C-323/09, at paragraph 44.
18 ibid, at [50] .
19 [2011] Joined Cases C-236 to C-238/08.
20 [2011] Case C-323/09.

UK Law Students’ Review – 2013 – Volume 1, Issue 2
unauthorised use of its trademark by a third party if the third party use adversely
affects the proprietor’s use of its mark as a factor in sales promotion or as an
instrument of commercial strategy. Applying this to Google’s AdWords service, it is
recognised that the purchase of keywords belonging to the trademark owner may have
certain repercussions on the advertising use of that mark by the trademark owner and
on his commercial strategy. However, the courts have drawn a distinction between
‘certain repercussions’ and ‘adverse effects’, and have held that the use of a sign
identical with another person’s trademark in a referencing service such as Google is
not liable to have an adverse effect on the advertising function of the trademark. 21 In
other words, the mere fact that the use of Google’s AdWords service (through
purchasing the keywords of trademark owners) by competitors obliges the trademark
owner to intensify its advertising in order to maintain or enhance its profile with
consumers (for e.g., by paying a higher price per click than its competitor if it wishes
to ensure that its advertisement appears before that of its competitor) is not a
sufficient basis for concluding that the trademark’s advertising function has been
impaired. 22
From the above summary, it is clear that the ECJ is trying to balance the inherent
tension between the interests of trademark owners and those in favour of free
competition. As noted by the ECJ in Interflora, although the trademark is an essential
element in the system of undistorted competition which European law seeks to
establish, its purpose however is not to protect its proprietor against practices inherent
in competition. In particular, the ECJ pointed out that in the case of the AdWords
service, the advertising function was not adversely affected because the home and
advertising pages of the trademark proprietor will appear in the list of the natural
results, usually in the highest positions on that list. That display, which is moreover
free of charge, means that the visibility to internet users of the goods or services of the
proprietor of the trademark is guaranteed, irrespective of whether or not that
proprietor is also successful in also securing the display, in one of the highest
positions, of an advertisement under the heading ‘Sponsored Links’.
Moreover, it is also perhaps evident to a certain extent that the ECJ’s decision has in
effect meant that a high threshold has been set for the advertising function of a
trademark to be regarded as being infringed. This has been noted by the UK Court of
Appeal in L’Oreal v Bellure 23 (applying the guidance given by the ECJ), who
explained at paragraph 30 that the advertising function is:
“Conceptually vague and ill-defined [...] Trademark owners of famous marks will
have spent a lot of money creating them and need to continue to spend to maintain
them. But all advertisements for rival products will impinge on the owner’s efforts
and affect the advertising function of the brand in question. [Yet] no one would say
that such jostling for fame and image in the market should be stopped”. 24
Seen from another light, the ECJ has expressly defined what is meant by acceptable
‘certain repercussions’, but has not done so similarly for what is meant by ‘adverse
effects’. In the light of such specific guidance from the ECJ, as well as the difficulties
21 ibid, at [57].
22 ibid.
23 [2010] EWCA Civ 535.
24 ibid, at [30].
17

18
The Legality of Google AdWords
pointed out by the English courts of the difficulty in applying the ECJ test, it is
submitted that it would be difficult in practice to demonstrate that the advertising
function of the trademark has been infringed. This supports the assertion that from a
legal perspective, competitors need only be concerned with not causing consumer
brand confusion. If no such confusion results, there is very little likelihood that rival
advertisers who purchase keywords of their competitor’s trademark would be held to
have breached the indicating origin or advertising functions of the latter’s trademark.
II(b)(3) – Investment Function
Pertaining to the investment function, the ECJ has noted expressly in Interflora that a
trademark may also be capable of attracting customers and retaining their loyalty
based on the acquired reputation of the trademark. In such a situation, use of a
trademark may be prohibited if such third-party use substantially interferes with the
proprietor’s use of the trademark to acquire or preserve a reputation capable of
attracting consumers and retaining their loyalty. Interestingly, however, the ECJ goes
on to consider the relation between the function of indicating origin and the investing
function of a trademark as follows:
“However, it cannot be accepted that the proprietor of a trade mark may – in
conditions of fair competition that respect the trade mark's function as an indication of
origin – prevent a competitor from using a sign identical with that trade mark in
relation to goods or services identical with those for which the mark is registered, if
the only consequence of that use is to oblige the proprietor of that trade mark to adapt
its efforts to acquire or preserve a reputation capable of attracting consumers and
retaining their loyalty. Likewise, the fact that that use may prompt some consumers to
switch from goods or services bearing that trade mark cannot be successfully relied on
by the proprietor of the mark”. 25
The above guidance seems to indicate once again a high threshold in determining
whether the investment function of a trademark has been infringed. What is more
interesting, however, is the ECJ’s relation to the function of indicating origin in the
first sentence. This seems to be an implicit recognition by the ECJ that the way to
balance the inherent tension between trademark owners and competitors is to ensure
that the function of indicating origin of the trademark is not infringed. Once it is clear,
however, that the function of indicating origin has not been infringed, the courts will
only examine whether the other functions (i.e. advertising and investment functions)
of the trademark has been infringed to the extent that it has been used for those other
functions. Even so, the ECJ has set a high threshold for these other functions to be
regarded as having been infringed so as to balance the interests between free
competition and trademark protection. The very fact that the ECJ has provided
detailed guidance to competitors as to what constitutes infringement of the other
functions, but on the other hand has failed to do the same for trademark owners,
supports the assertion that the ECJ is not as concerned about the infringement of the
other functions of the trademark and that the practical effect of its judgments is that
the use of Google AdWords is allowed as long as it does not result in consumer brand
confusion. Moreover, as pointed out by the UK Court of Appeal in L’Oreal v Bellure,
it is hard to imagine what is to be regarded as infringement of the investment function,
25 Supra Note 20, at [64].

UK Law Students’ Review – 2013 – Volume 1, Issue 2
since all comparative advertising is likely to affect the value of the trademark owner’s
investment, yet the ECJ has held that it is an acceptable practice.
II(c) – Section 10(3) – Confusion unnecessary; Issue is whether dilution,
tarnishment or unfair advantage has resulted
As for s.10(3), it has been held in General Motors 26 that confusion is not required
under this section. There are three possible types of damage recognised under this
section, namely (i) dilution (where the trademark’s ability to identify the goods and
services for which it is registered is weakened), (ii) tarnishment (i.e. the trademark’s
power of attraction is reduced) and (iii) unfair advantage (defined as exploitation on
the coat-tails of the mark with a reputation). Section 10(3) offers additional protection
for trademarks with a reputation, since it is possible to bring an action under this head
as long as a similar sign has been used, even if the advertiser is selling completely
different goods.
II(c)(1) – Dilution
Dilution is caused when the trademark’s ability to identify the goods or services for
which it is registered is weakened. This is particularly the case when the mark, which
at one time aroused immediate association with the goods or services for which it is
registered, is no longer capable of doing so. The ECJ in particular have held that the
stronger the earlier mark’s distinctive character and reputation, the easier it will be to
accept that detriment has been caused to it. However, the ECJ has also sought to
balance this by requiring that such detriment to the distinctive character of the mark
must be proven, which would require evidence of a change in the economic behaviour
of the goods or services for which the earlier mark was registered consequent on the
use of the later mark, or a serious likelihood that such a change will occur in the
future. 27
Such an evidentiary threshold is in fact not easy to prove, as noted in the Och-Ziff
case, where the High Court was not satisfied that the plaintiffs had adduced any
evidence where it would be proper to infer a change in economic behaviour on the
part of consumers. Moreover, the High Court has also pointed out that the trademark
must have a sufficient reputation before it can enjoy protection under s.10(3). More
importantly, though, the High Court also observed that where trademarks involved a
combination of words, it could very well be the case that the separate words
themselves constituted an independent distinctive element (such that the reduction in
distinctiveness of one of the words could not automatically lead to a presumption that
either the distinctiveness of the other word, or that of the combined words, was
reduced).
To summarise, it is therefore clear that both the ECJ and the High Court set a
relatively high evidentiary threshold for trademark owners to prove that there has
been dilution of their trademarks as a result of “AdWords”.
26 [1999] Case C-375/97.
27 Intel Corporation Inc v CPM United Kingdom Ltd [2008] Case C-252/07, at [77].
19

20
The Legality of Google AdWords
II(c)(2) – Tarnishment
Tarnishment is caused when the goods or services for which the identical or similar
sign is used by the third party may be perceived by the public in such a way that the
trademark’s power of attraction is reduced. This is particularly the case when the
goods or services offered by the third party possess a characteristic or a quality which
is liable to have a negative impact on the image of the mark. Once again, however, it
is not easy to satisfy for trademark owners to prove that their sign has been tarnished.
In particular, the High Court in Och-Ziff noted that in the absence of any likelihood of
confusion, it is very difficult to support the claim that the reputation of the trademark
will be adversely affected. This is so even if the competitor who uses the mark is less
successful than that of the trademark proprietor. In relation to Google AdWords, it is
worth noting that there has thus far been no case where an action for tarnishment has
succeeded in the context of Google AdWords (this can be attributed more to the fact
that there has been a dearth of cases considering tarnishment in the context of Google
AdWords 28 ). As such, it is only possible to speculate at this stage on the possible
approach of the courts, but following Och-Ziff, it is likely that if trademark owners
hope to prove tarnishment under Google AdWords, they will have to allege more than
simply the contention that their competitors are less successful than them.
II(c)(3) – Unfair advantage
With regards to unfair advantage, it refers to an advantage obtained by the third party
which, while not confusing nor otherwise damaging, is unfair as the advantage is
obtained intentionally in order to benefit from the power of attraction, the reputation
and the prestige of the mark and to exploit the marketing effort expended by the
proprietor of the mark without making any such efforts of his own, and without
compensation for any loss caused to the proprietor or for the benefit gained to the
third party. In Och-Ziff, the High Court noted that two English decisions had
considered the ECJ’s ruling in L’Oreal v Bellure 29 . Both decisions seemed to have
slightly different views about how unfair advantage may be found, with Lloyd J in
Whirlpool 30 asserting that an objective test was necessary, which involved a global
assessment of factors as mentioned in Paragraphs 79 – 80 in Intel Corporation 31 . Thus,
unfair advantage can only be proven by something other than intention. The Court of
Appeal, in L’Oreal v Bellure (No. 2), however, seemed to contradict this view, and
stated that the effect of the ECJ’s ruling was that unfair advantage may be caused by a
subjective test of intention to free-ride. As long as there was an intention to free-ride,
there would be unfair advantage. Interestingly, the ECJ now seems to have clarified
by what is meant by unfair advantage, as it pointed out in Interflora that if a rival
competitor simply purchases the keyword of the trademark proprietor so as to simply
offer a genuine alternative, then there can be no unfair advantage. This statement is of
course qualified by the fact that the alternative product must not be a mere imitation
28 There has thus far only been the case of Interflora (as mentioned above), where the ECJ noted that
the referring court (the High Court of Justice, England and Wales) did not require it to consider
questions pertaining to tarnishment. Moreover, the High Court is yet to pass final judgment on the
Interflora case, and it remains to be seen whether it will consider tarnishment in the context of Google
AdWords then.
29 [2009] Case C-487/07.
30 [2010] RPC 51.
31 [2008] Case C-252/07.

UK Law Students’ Review – 2013 – Volume 1, Issue 2
of the goods of the trademark proprietor, nor can it have an adverse effect on the
functions of the trademark concerned; neither can it cause dilution or tarnishment.
This is especially interesting, because in practice it means that confusion is the key
(and only) element that keyword purchasers/advertisers need to be worried about. As
demonstrated above, there are high evidentiary thresholds set in practice for
infringement of the trademark functions to be found; and where there are imitations of
goods (e.g. fake goods), there is obviously, and rightly so, a likelihood of confusion.
Of course, it remains to be seen how the UK Courts will apply the new guidance set
out by the ECJ, but it should not be forgotten that they are bound by ECJ decisions.
Google’s policy, which suggests to the effect that advertisers who make use of
keyword purchasing have nothing to worry about as long as there is no likelihood of
confusion, is therefore accurate as it reflects how the courts are likely to approach
such cases in the future.
II(d) – The Tort of Passing-Off
Finally, it is necessary to consider whether keyword purchasers/advertisers may be
liable under the Tort of Passing Off. The Tort of Passing Off consists of three
elements, which are (1) Goodwill, (2) Misrepresentation and (3) Damage. Failure to
fulfil all of the three elements will mean the collapse of any action under the Tort of
Passing Off. Since the possibility of confusion is probably best represented under the
misrepresentation element, it is sufficient to consider just this aspect of the tort. The
High Court in Och-Ziff stated that initial interest confusion was able to give rise to a
finding of misrepresentation. Thus, where the defendant successfully induces the
public to do business with him by making a misrepresentation, then it ought not to
matter if the falsity of the representation becomes apparent before the transaction is
concluded. This is because the basis of passing off is a misrepresentation causing
damage to the claimant’s goodwill, so the issue is how the consumer subjectively
perceives the product. However, if there is no likelihood of confusion, it is
accordingly difficult to assert misrepresentation because the average consumer will
know that the product advertised is not that of the trademark proprietor’s but rather
that of a competitor.
To summarise, this effectively means once again that Google’s AdWords policy is
perfectly acceptable, because if there is no possibility of confusion, it would be
difficult to assert that passing-off has been committed.
III – Conclusion
In conclusion, it must be asserted that Google’s policy of permitting rivals to purchase
keywords of trademarks is perfectly acceptable, as long as it does not cause consumer
brand confusion. As demonstrated above, Google’s policy is supported by case law,
and this may well be the practical effect of Interflora where imitations are likely to be
regarded as trademark infringements, but other than that it is unclear in what practical
situations trademark owners may oppose keyword advertising where the sponsored
link is clear as to the origin of the goods. 32 The ECJ has imposed a high threshold on
how trademark infringement can be found bar confusion, and rightly so. They
recognise that trademarks can be useful in facilitating the effectiveness of the Single
Market (for e.g. acting as a source identifier, which helps to facilitate trade). At the
32 Neville Cordell, ‘The limits of fair competition on the Internet’ [2011] IPM (Nov) 75.
21

22
The Legality of Google AdWords
same time, they also recognise that trademarks may also be used to consolidate the
market share of existing producers, which would tend to decrease inter-State trade. A
proper balance between trademark proprietors and competitors in the realm of
AdWords is thus necessary. The UK, as a strong proponent of the Single Market, is
likely to agree with the ECJ’s approach. This can be seen in the recent approach of the
UK Courts towards ECJ guidance, where they have tended to apply the guidance
without any expression of serious reservations 33 , save for Jacob LJ in L’Oreal v
Bellure (No. 2) 34 . This approach is likely to be carried forward when the High Court
re-considers Interflora in the near future.
From the advertiser’s perspective, transparency in the advertisement is therefore very
important. To minimise confusion on the part of internet users, advertisements must
not conceal the source of goods, nor should it refer to the trademark. Moreover,
advertises who purchase keywords also need to consider whether the trademarks have
secondary meanings, such as those denoting a commercial network, and if so whether
a disclaimer may be necessary. 35 If this advice is followed, it will most likely be the
case that the advertisement accompanying the sponsored link will be clear as to the
origin of the goods and not cause confusion. Compliant advertisers should therefore
have little to fear from trademark owners.
33 See for example, Och-Ziff and Lewis v Client Connection.
34 This was not in relation to AdWords, bur rather to the ECJ’s view that imitations in any form are not
to be tolerated even if the marketing information was explicitly clear that the imitated product was
simply to offer consumers a ‘feel’ of how the real product would be.
35 Rachel Fetches, ‘Keyword Advertising: a round-up of EU cases’ (2011) E.C.L. &P 13(11).

THE HUMAN RIGHTS ACT SECTION 2(1) TAKEN INTO ACCOUNT
Ciju Puthuppally, University of Cambridge
Abstract: On the 14 th of December 2011, Lord Irvine, the architect of the Human
Rights Act 1998 (HRA), incisively criticised the courts for their handling of HRA
section 2(1). According to him, the injunction on courts in s.2(1) to take the
jurisprudence of the European Court of Human Rights into account has been
transmogrified into an obligation to follow it; the courts have thus been too
submissive in following Strasbourg. This criticism, however, must be questioned. In
the first place, the statute and its legislative history are ambiguous. In light of this,
any interpretation of s.2 should rightly defer to ulterior grounds of policy, principle
and reason. Considering the UK’s international law obligations and further practical
issues, the current construction of s.2 is to be defended as regards the courts’
reluctance to grant lesser protection than Strasbourg. Nonetheless, Lord Irvine’s
criticism should be heeded with respect to the courts’ duty under both the European
Convention on Human Rights and the HRA to engage Strasbourg in dialogue, not
mimicry. In particular, his criticism of the self-abnegation of British courts under the
Ullah principle is to be supported. Ultimately, British judges should accept the
jurisdiction they have been granted under the HRA to make a distinctive contribution
to human rights law.
I – Introduction
British judges have borne much criticism from several quarters over their judgments
on the Human Rights Act 1998 (HRA) and the European Convention on Human
Rights (ECHR). On the 14 th of December 2011, for the first time publicly
commenting on his intent behind HRA section 2(1), Lord Irvine decisively added his
own voice to the debate. He was forcefully critical of the courts’ handling of s.2,
scolding them for their submission to Strasbourg. According to him, s.2 of the HRA
“means that it is our judges’ duty to decide the cases for themselves and explain
clearly to the litigants, Parliament and the wider public why they are doing so. This,
no more and certainly no less, is their constitutional duty.” 1 According to him, it is a
duty the judges have betrayed.
This is a profound and surely piercing critique from the architect of the HRA.
However, the legitimacy thereof must be questioned. Firstly, the claim that the
meaning of s.2 is semantically simple and plainly at odds with the courts’ approach is
stretched. The statutory wording – and even the legislative history – is ambiguous. In
light of this, any interpretation of s.2 should rightly defer to ulterior grounds of policy,
principle and reason. These relate in particular to international obligations and
practical considerations. In these terms, the courts are in large part to be defended to
the extent that they have been reluctant to depart from Strasbourg authority in order to
allow a prima facie violation of Convention rights. On the other hand, Lord Irvine’s
criticism should be heeded as regards the role of the courts under both the ECHR and
the HRA to engage Strasbourg in dialogue, not mimicry. Moreover, Lord Irvine’s
voice adds further force to the view that the courts’ timidity in furthering the
1 Lord Irvine of Lairg, “A British Interpretation of Convention Rights” (Bingham Centre for the Rule
of Law, University College London, 14 December 2011)
accessed 30 January 2012.

The Human Rights Act Section 2(1) Taken into Account
protection of human rights is undue and regrettable self-abnegation. Ultimately,
British judges should accept the jurisdiction they have been given under the HRA to
make a distinctive contribution to human rights law.
II - Semantic Ambiguity
Lord Irvine’s criticism is founded foremost on the plain meaning of the statute.
Section 2(1) provides: “A court or tribunal determining a question which has arisen in
connection with a Convention right must take into account any…judgment…of the
European Court of Human Rights…” 2 Herein, “take into account” “can be
paraphrased as ‘have regard to’, ‘consider’, ‘treat as relevant’ or ‘bear in mind’.” 3 In
his opinion, however, the courts have unacceptably distorted this meaning by
considering themselves “bound (or as good as bound)” 4 following Lord Slynn’s
statement in the Alconbury 5 case:
…Although the Human Rights Act 1998 does not provide that a national
court is bound by these decisions it is obliged to take account of them so
far as they are relevant. In the absence of some special circumstances it
seems to me that the court should follow any clear and constant
jurisprudence of the European Court of Human Rights. 6
The requirement of exceptional circumstances to depart from the European Court of
Human Rights (ECtHR) case law is, it is claimed, a fundamental misreading of the
statute.
‘Take account of’ is not the same as ‘follow’, ‘give effect to’ or ‘be bound
by’. Parliament, if it had wished, could have used any of these
formulations. 7
According to Lord Irvine, this clearly denies the courts’ approach of following
Strasbourg barring exceptional circumstances. It will be argued, however, that beyond
the polar prohibitions of absolute ignorance and absolute submission, the statute
admits of a wide range of approaches to Strasbourg jurisprudence. The courts’
approach falls within that range. Even though it imposes a requirement not stated in
the statute for departure from ECtHR judgments, some such addition was an
inevitable result of the ambiguity of s.2. The compatibility of the courts’ approach
with the statutory phrasing may finally be confirmed by reference to comparisons.
Firstly, it is to be noted that a requirement that a factor be “taken into account”, though
simply worded, is indubitably vague. It does not specify how the factor is to be taken
into account, or to what extent. Besides the plain demand that the factor be considered,
it gives no instruction as to the weight such consideration should be given.
2 The Human Rights Act 1998 c.42.
3 Lord Irvine (n 1) 2.
4 Ibid 4.
5 R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment and
the Regions [2003] 2 AC 295.
6 Ibid 313.
7 Lord Irvine (n 1) 3.
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UK Law Students’ Review – 2013 – Volume 1, Issue 2
This being so, all such a requirement does – at most – is establish two prohibitions.
Certainly, it bars a court from wholly ignoring the factor in question. Some
consideration must be given to it in whatever way.
Secondly, one might agree with the more specific statement of Lord Irvine that “take
into account” in s.2 does not mean “follow”. 8 After all, as Lord Irvine mentions, an
amendment to replace the ambiguity with “must follow” was rejected. 9 One might also
note the judicial review principle that, given a statutory discretion, the adoption by a
decision-maker of a policy without provision for exceptions constitutes unlawful
fettering of such discretion. 10 So much, therefore, may properly be considered outside
the specified scope of the statute.
However, s.2(1) prescribes or demands nothing further, nothing more specific, than
this. Surely, on a plain reading, it therefore allows for a huge range of meaning falling
anywhere between these two polar extremes of absolute ignorance and absolute
compulsion.
The position adopted by the courts falls within this range. It does not betray the bare
instruction that Strasbourg judgments are “to be taken into account”; rather, it
specifies how they are to be taken into account: when Strasbourg case law is taken into
account and it is “clear and constant”, this has greater weight than other factors, except
that “some special circumstances” may have even greater weight. 11
It is not to be said that the imprecision of that exception of “special circumstances”
renders the rule tantamount to an absolute obligation. As Lord Irvine himself notes,
the court in Horncastle 12 departed from Strasbourg case law, finding on that occasion
that the Strasbourg court did not sufficiently appreciate or accommodate “particular
aspects of our domestic process.” 13 Further, Lord Neuberger suggested in Pinnock 14
that even a clear and constant line of Strasbourg jurisprudence might be departed from
if it is “inconsistent with some fundamental feature of our law” 15 . This interpretation is
commended by Lord Irvine as a “more nuanced” 16 approach; nonetheless, it is
consistent with the general position that he criticises, for it is again merely stating an
exception. One might even see such a fundamental inconsistency as a “special
circumstance” of itself, and thus read it directly in line with the foundational position
of Lord Slynn.
Though Lord Irvine claims that this means the court is “as good as bound” 17 , this is
certainly not the same as turning “must take into account” into “must follow”. The fact
alone that such special circumstances arise only rarely does not mean that the
8 Lord Irvine (n 1) 3.
9 Lord Irvine (n 1) 3.
10 R. v Secretary of State for the Home Department, ex p. Venables [1998] A.C. 407, 417.
11 Alconbury (n 5) 313 per Lord Slynn.
12 R. v Horncastle [2010] 2 A.C. 373.
13 Ibid 432
14 Pinnock v Manchester City Council [2010] 3 WLR 1441.
15 Ibid 125.
16 Lord Irvine (n 1) 5.
17 Ibid 4.
25

The Human Rights Act Section 2(1) Taken into Account
provision has been transformed into an obligation to follow rather than take into
account. The courts have merely established an approach to the actual process of
taking Strasbourg jurisprudence into account, to the assessment of the relative weight
of this factor as against others.
The real objection is that the courts have imposed a requirement that was not
specifically directed by s.2(1) – namely that there must be some exceptional
circumstance. This is true. However, this is not to be objected to on the ground that it
contradicts, or exceeds the ambit of, s.2.
Some assessment of the relative weight of consideration of Strasbourg case law is
surely an inevitable result of the obligation to take that factor into account. Then, the
question is whether the statute specified in some fashion the measure of that relative
weight. On the face of it, it certainly has not; the provision does not go further than the
obligation to “take into account”. It provides no terms detailing that it should be taken
into account in this way and not in that. Where the provision does not answer this
question that arises inexorably from the bare obligation in s.2, it seems an ineluctable
conclusion that it is for the court to decide the point. As such, surely the courts are not
guilty of misreading the provision in maintaining that the weight of specifically “clear
and constant” Strasbourg case law is particularly great, and so requires “special
circumstances” to be offset. 18 One might note that the very fact that Strasbourg
authority has been singled out for obligatory consideration implies that it is indeed
especially significant.
Therefore, so long as following Strasbourg authority is not an absolute obligation, the
courts’ approach cannot properly be said to betray the statutory wording. Finding
greater merit in the existence of consistent and constant Strasbourg case law than in
considerations that do not amount to special circumstances is simply the courts’
process of taking Strasbourg jurisprudence into account. Consequently, the bare
meaning of s.2(1) does not of itself deny the courts’ approach.
Indeed one might consider for comparison approaches to such statutory wording in
other scenarios. In the Oil Platforms case, 19 for example, the International Court of
Justice admitted that following the general rules of treaty interpretation, 20
“interpretation must take into account any relevant rules of international law
applicable.” 21 This did not bar it from – nor indeed cause any conflict of mandate in –
taking a similarly exceptional approach to departing from the relevant authority.
Indeed it noted that “[t]he application of the relevant rules of international law relating
to this question thus forms an integral [italics added] part of the task of
interpretation…” 22
18 Alconbury (n 5) 313.
19 The Oil Platforms case (Iran v United States of America) (Merits) Reports 2003.
20 Following Art.3(c) of the 1969 Vienna Convention on the Law of Treaties.
21 Oil Platforms (n 19) [41].
22 Oil Platforms (n 19) [41].
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Even more revealing is the approach taken to Sentencing Guidelines in the US.
Delaware requires an “advisory”, or “voluntary and non-binding” 23 consideration of
State Sentencing Guidelines, and yet requires that judges only depart from the
standard sentence range “if they find that there are substantial and compelling reasons
justifying an exceptional sentence.” 24 Indeed, compliance is at ninety per cent. 25
Furthermore, “[t]he governing factor(s) leading to the exceptional sentence must be
stated for the record and should be identified in the sentencing order” 26 , not unlike
Lord Phillips’ requirement that the judge “giv[e] reasons for adopting this
[exceptional] course.” 27 Similarly, the Minnesota Sentencing Guidelines, in its
statement of purpose, claims that “[w]hile the sentencing guidelines are advisory to
the sentencing judge, departures from the presumptive sentences established in the
guidelines should be made only when substantial and compelling circumstances
exist.” 28 The juxtaposition of the two allegedly incompatible conditions is particularly
revealing. That something is non-binding and “advisory” only does not exclude the
possibility that it be considered binding barring exceptional circumstances. The same
must hold true of something that need only be “taken into account”.
Thus Lord Irvine’s claim as regards the “plain” meaning of the provision is to be
doubted. The statute is not clear, and the courts’ construction of it is compatible with
the only two prohibitions that the statute does plainly establish. This is confirmed by
comparison with the approach taken to departures from relevant rules in the Oil
Platforms case and from “advisory” sentencing guidelines in the US. Therefore, if the
courts are to be criticised, it is not over the bare meaning of the statute. The language
of s.2(1), in the wide discretion that its ambiguity affords, admits of the approach that
has been taken. The question then is whether the courts have or have not been properly
guided by ulterior principles to adopt the best course left open to them under that
discretion.
III - International Obligations
Lord Irvine emphasises that there is no “magic” in a clear and constant line of
Strasbourg jurisprudence that renders it so compelling. This may be “no more than an
extended repetition of error”. 29 However, the courts are to be defended in their
commitment to such jurisprudence by consideration of the UK’s international law
obligations, traditional rules of statutory construction in respect thereof, and the
HRA’s legislative history.
The “magic” seen by the courts in a clear and constant line of Strasbourg
jurisprudence is of course implicit. A clear and constant line of Strasbourg
23 Delaware Sentencing Accountability Benchbook 2010 at 18; see also Neal B. Kauder and Brian J
Ostrom, State Sentencing Guidelines: Profiles and Continuum (National Center for State Courts 2006)
10.
24 Ibid 102.
25 Kim Hunt and Michael Connelly, “Advisory Guidelines in the Post-Blakely Era” [2005] Federal
Sentencing Reporter Vol. 17 No.4 at 235.
26 The Delaware Benchbook (n 23) 102.
27 Horncastle (n 12) at 432.
28 Minnesota Sentencing Guidelines and Commentary 2011, 1.
29 Lord Irvine (n 1) 5.
27

The Human Rights Act Section 2(1) Taken into Account
jurisprudence effectively establishes the international law regarding Convention rights.
The need to comply with international law has been what might properly be said the
major ground for the courts’ deference to Strasbourg. Thus in AF v Secretary of State
for the Home Department, 30 Lord Hoffmann, though disagreeing with the relevant
Strasbourg decision, submitted that:
As a matter of our domestic law, we could take the decision in A v United
Kingdom into account but nevertheless prefer our own view. But the United
Kingdom is bound by the Convention, as a matter of international law, to
accept the decisions of the ECHR on its interpretation. To reject such a
decision would almost certainly put this country in breach of the
international obligation which it accepted when it acceded to the
Convention. I can see no advantage in your Lordships doing so. 31
Indeed, the UK is party to the ECHR following ratification in 1951. Under ECHR
Art.46, therefore, the UK is bound to “abide by the final judgment of the Court in any
case to which they are a party”. It might further be noted that the UK is also
effectively bound by the ECHR under EU law, for the “Union shall respect
fundamental rights, as guaranteed by the European Convention… as general principles
of law” 32 . Via this route, the ECHR has force with parliamentary backing even
independently of the HRA.
However, Lord Irvine contends that:
....excessive preoccupation with this consideration [of international
obligations] has led the Courts into error. A judge’s concern for the UK’s
foreign policy and its standing in international relations can never justify
disregarding the clear statutory direction which s.2 of the HRA provides. 33
Admittedly, Lord Irvine’s wider argument that judges should not be involved in these
affairs is a powerful one. However, the argument that they have become over-involved
is premised on the view that the judges have let that consideration override the
obvious meaning of the statute. As has been argued, there is no such “clear statutory
direction”.
Given that the statute is generally ambiguous as to the extent to which it should give
weight to the factor taken into account, it is far from unwarranted to rely on
international obligations to guide the choice of an appropriate approach within the
scope that is granted by s.2. It is hardly an “excessive preoccupation” to follow then
what is by no means a novel approach to statutory interpretation. It is indeed a “wellknown
rule of construction of statutes that requires statutes to be construed, if possible,
consistently with the government’s treaty obligations.” 34 Under the ambiguity of s.2,
this certainly is “possible”. There is surely therefore a case for presuming that
Parliament did not intend to legislate contrary to its ECHR obligations.
30 AF v Secretary of State for the Home Department [2010] 2 A.C. 269.
31 Ibid, 357.
32 Maastricht Treaty Article F(2).
33 Lord Irvine (n 1) 7.
34 Attorney-General v Observer Ltd [1990] 1 AC 109 at 158.
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Was it otherwise so plain that Parliament had no such intention? Lord Irvine implies
that this is evident from the legislative history of the clause. However, he himself
confirmed, in the House of Lords debate that he refers to, that “[t]he United Kingdom
already accepts that Strasbourg rulings bind” 35 , and that “it has been the clear desire of
all the main political parties, and has had their general assent, that we comply with our
convention obligations.” 36 He further stated that “human rights are valuable and they
deserve protection at home—equal protection to the protection to which they are
entitled at Strasbourg.” 37 Does it not appear from such statements that Parliament
intended to comply with its ECHR obligations under the HRA?
A potential objection raised by Lord Irvine is that it is not strictly the courts that are
bound by Art.46 of the ECHR, but rather the state. The courts are obliged to decide
on whether or not to follow a Strasbourg ruling independent of the UK’s treaty
obligations. It is a matter for Parliament and the Foreign and Commonwealth Office
to consider the potential consequences of a breach of Art.46.
Yet this might just as easily be said of any treaty obligation, for it is rarely specified
that the courts must give effect to them. Nevertheless, of course, that is not the
position otherwise taken. So long as there is ambiguity in the wording, the
presumption is not simply that Parliament intended to abide by the UK’s obligations
in general, but that it did not intend to contravene them in the particular provision in
question; therefore, the meaning of that provision itself is logically to be read in line
with British international treaty commitments. The legislative history cited suggests
that Parliament did intend to bring the UK into conformity with its treaty obligations.
There is little indication that there is a peculiar exception in this case in that the UK
qua the state, and not qua the courts, should be properly concerned with this
obligation.
At the least, then, a contrary meaning is not so plain that the courts should turn a blind
eye to the UK’s treaty obligations. The ambiguity is far from settled by reference to
legislative history. Nor is it to be said that the application of that rule of construction
here, given that Parliament must legislate before the Government’s ratifications take
effect, would be to “impute to Parliament an intention to import the Convention into
domestic law by the back door” as in Brind. 38 Indeed, holding to the contrary might as
well be to impute to Parliament an intention most covertly to evade treaty obligations
by the backdoor. Thereto, it is to be remembered that even besides the HRA,
Convention rights have been incorporated into EU law, which does have explicit
statutory backing. On the whole, therefore, not only was it left perfectly open to the
courts to apply the presumption that Parliament did not intend by s.2 to flout the UK’s
international obligations, but this must have appeared to be Parliament’s stance with
reference to Hansard.
35 HL Deb 3 November 1997, vol 582, col 1228.
36 HL Deb 5 February 1998, vol 585, col 755.
37 Ibid vol. 585, col. 755.
38 R. v Secretary of State for the Home Department Ex p. Brind [1991] 1 A.C. 696, 718.
29

The Human Rights Act Section 2(1) Taken into Account
IV - Practical Considerations
Further practical grounds have been raised in support of the courts’ approach. Indeed
it may be regarded as appropriately guided by considerations of international influence,
legal certainty and the significant delays attending appeals to the ECtHR.
It is argued that refusing to abide by a Strasbourg decision requiring a minimum level
of protection would set a bad example for other states party to the ECHR. 39 Lord
Irvine dismisses this firstly on the ground that it is essentially a question of “foreign
relations and statecraft”, and secondly on the basis that any such consideration as is
warranted is duly paid by giving “considered and respectful regard” to the relevant
judgment. 40 Even so, considering the numerous approaches the ambiguity of s.2(1)
admits of, it does not seem inappropriate to consider the broader impact of each in
practice to determine the best course. In this regard, it would be regrettable if the UK,
having played a great role in the erection of the ECHR system, were to lead its decline
by undermining the authority of Strasbourg.
Certainly, objections of exceeding the courts’ role cannot be brought against the
further argument of legal certainty. The significant judicial discretion given under the
ambiguity of s.2(1) raises the well-warranted criticism of a lack of certainty in the law,
as argued by Tierney. 41 If the “clear and constant”, viz. the well-established
jurisprudence of Strasbourg may be dismissed without exceptional circumstances,
human rights law, an area in need of special certainty, is rendered particularly
unpredictable. As Masterman notes, the precedential approach sometimes taken by
British courts to Strasbourg jurisprudence is one that “places legal certainty at its core
and aims to deter accusations of the judge acting without reference to legal
authority.” 42
An additional practical concern informs Lord Slynn’s foundational position:
In the absence of some special circumstances it seems to me that the court
should follow any clear and constant jurisprudence of [the ECtHR]. If it
does not do so there is at least a possibility that the case will go to that court
which is likely in the ordinary case to follow its own constant
jurisprudence. 43
This is not an undue nor an insubstantial consideration. Though ideally the ECtHR
should be suitably equipped, the backlog of cases with which Strasbourg has to
grapple is well known. Appeals to it therefore entail significant delay, and thus it is
not inappropriate to question their propriety where the relevant case-law irrevocably
demonstrates the position that will be taken absenting the necessary exceptional
circumstances.
39 Lord Irvine (n 1) 9.
40 Lord Irvine (n 1) 9.
41 Tierney, “Devolution Issues and s.2(1) of the Human Rights Act 1998” [2000] EHRLR 380, 392.
42 Roger Masterman, Judicial Reasoning under the UK Human Rights Act (Helen Fenwick, Gavin
Phillipson and Roger Masterman ed, Cambridge University Press 2000) 60.
43 Alconbury (n 5) 313.
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Of course, one must always be wary of allowing procedural considerations to dictate
the substantive law, but this consideration is also relevant to the purposive approach to
statutory interpretation. Indeed, the point informed the parliamentary debate. Lord
Irvine himself noted that the HRA “provides better and easier access to rights which
already exist” 44 and that “human rights are valuable and they deserve protection at
home—equal protection to the protection to which they are entitled at Strasbourg
[italics added].” 45 Thereto, Lord Bingham, in the speech to which Lord Irvine refers,
further noted that
It makes no sense, and, I suggest, does not make for justice that those
seeking to enforce their rights have to exhaust all their domestic remedies
here before embarking on the long and costly trail to Strasbourg. 46
Moreover, in his criticism itself, Lord Irvine notes “the uncertainty which is
perpetuated in the interregnum.” 47 This reality should not be ignored. Albeit as a
practical consideration, it lends weight to the stance that Strasbourg case law should
be departed from only in exceptional circumstances, which, by that condition, truly
warrant the questioning. Thus there are substantial grounds that vindicate an
“exceptionalist” approach to departures from Strasbourg case law.
V - Dialogue, Not Mimicry
However, Lord Irvine’s criticism is at least an important caveat. Judges should not
merely attempt to mimic or pre-empt Strasbourg, because they have an important role
to play – within the framework both of the ECHR jurisprudence in general and the
HRA. This may be seen in Strasbourg’s emphasis on margins of appreciation and
subsidiarity, and in the HRA’s purpose of empowering British judges.
As regards the ECHR, even though the courts are justified in considering treaty
obligations, those obligations should not be overstated. A significant amount of
latitude is allowed by the ECtHR. Even if other cases are regarded as establishing the
opinion of the Strasbourg Court, it does not necessarily follow that the same position
will be adopted with regard to the UK given the varying “margin of appreciation”
granted to different countries in relation to some Articles.
Moreover, Strasbourg has – as is much emphasised – a subsidiary role in the
protection of human rights. In Handyside v United Kingdom, 48 the ECtHR explained:
The Convention leaves to each contracting state, in the first place, the task
of securing the rights and liberties it enshrines… By reason of their direct
and continuous contact with the vital forces of their countries, State
authorities are in principle in a better position than the international judge to
give an opinion on the exact content of these requirements as well as on the
‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them. 49
44 HL Deb (n 36) col 755.
45 Ibid.
46 HL Deb (n 35) col 1245.
47 Lord Irvine (n 1) 10.
48 Handyside v United Kingdom (1979-80) 1 EHRR 737.
49 Ibid 748.
31

The Human Rights Act Section 2(1) Taken into Account
As such, there is no indiscriminate obligation on courts to give direct effect to ECtHR
decisions; rather, there is indeed discretion for the state to “implement them in
accordance with the rules of its national legal system” 50 as Lord Irvine emphasises.
This should be taken together with a purposive reading of the HRA s.2. Whilst it is far
from clear that, in interpreting s.2, the UK’s international obligations should be
neglected by the courts, the legislative history of the Bill does, as Lord Irvine states,
suggest an intention to allow judges to play an assertive role. In introducing the Bill,
Lord Irvine explained that it “will allow British judges for the first time to make their
own distinctive contribution to the development of human rights in Europe.” 51 Lord
Bingham in the Lords Debate also commented that
it seems to me highly desirable that we in the United Kingdom should help
to mould the law by which we are governed in this area … British judges
have a significant contribution to make in the development of the law of
human rights. It is a contribution which so far we have not been permitted to
make. 52
Given the latitude admitted by the ECtHR as noted, this intention may be seen as
compatible with the presumption that Parliament did not intend to legislate contrary to
the Government’s treaty obligations. A preferable reading of HRA s.2(1) can and
should therefore account for both of these considerations.
In light of this, it is surely inappropriate to adopt a position that merely “mimics” or
“pre-empts” the judgment of Strasbourg. 53 There is a distinctive role that the British
judge has to play. The “more nuanced” 54 approach of Lord Neuberger that Lord Irvine
commends is instructive:
This court is not bound to follow every decision of the European court.
Not only would it be impractical to do so: it would sometimes be
inappropriate, as it would destroy the ability of the court to engage in the
constructive dialogue with the European court which is of value to the
development of Convention law… Where, however, there is a clear and
constant line of decisions whose effect is not inconsistent with some
fundamental substantive or procedural aspect of our law, and whose
reasoning does not appear to overlook or misunderstand some argument or
point of principle, we consider that it would be wrong for this court not to
follow that line.” 55
In principle, this strikes the appropriate balance. Courts should not be
constrained absolutely from improving human rights law. They are certainly
entitled under s.2 of the HRA, even when read together with ECtHR
jurisprudence as mentioned, to disagree with Strasbourg case law in some
50 DJ Harris, M O’Boyle and C Warbrick (ed), Law of the European Convention on Human Rights
(Butterworths 1995) 26.
51 HL Deb (n 35) col 1227.
52 HL Deb (n 35) col 1245.
53 Lord Irvine (n 1) 9.
54 Lord Irvine (n 1) 5.
55 Pinnock v Manchester City Council [2010] 3 WLR 1441 at §48.
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UK Law Students’ Review – 2013 – Volume 1, Issue 2
circumstances, and this leeway should be used to “further the dialogue”. This
suggestion by Lord Neuberger is by no means novel, either, but echoes Lord
Steyn and Lord Hoffmann on the room for “creative dialogue” between
domestic courts and Strasbourg. 56
As Lord Irvine notes, however, there can be no dialogue where domestic courts
are committed to mimicking Strasbourg or pre-empting their judgment. This is
not “constructive”. Thus although the qualification is appropriate, British courts
should not feel themselves too restricted under the “exceptional circumstance”
requirement for derogation. One might rightly question therefore whether Lord
Hoffmann’s submission in AF v Secretary of State for the Home Department
was appropriate where he did so
with very considerable regret, because I think that the decision of the
ECHR was wrong and that it may well destroy the system of control
orders which is a significant part of this country’s defences against
terrorism. Nevertheless, I think that your Lordships have no choice but to
submit. 57
Without considering the merit of his regret, it must be said that the grounds for such
disagreement should be considered a “special circumstance”, even if there should be
no question that a subsequent rejection by Strasbourg on appeal must be taken as
authoritative. In some cases, therefore, Lord Irvine’s criticism in this regard is forceful.
However, this is not to be overstated. As the ECtHR emphasised in Handyside,
contracting states do not have an “unlimited power of appreciation.” 58 “The Court… is
empowered to give the final ruling” 59 on whether a prima facie breach is reconcilable
with the ECHR. “The domestic margin of appreciation thus goes hand in hand with a
European supervision.” 60
Furthermore, the margin of appreciation does not and should not affect the broader
thrust of fundamental principles, evident from the fact that it is not available for all
Articles. A “clear and constant” line of ECtHR jurisprudence on the basic meaning of
a particular principle is therefore particularly authoritative, and on such a broad aspect
there is little appropriate scope for variation from country to country. Otherwise, the
entire basis of the ECHR that marks it as one with a special enforcement system
would be undermined. As such, Lord Neuberger’s insistence on an “exceptionalist”
approach is to be supported.
VI - A Distinctive Contribution
Lord Irvine’s criticism is particularly forceful with regard to the courts’ failure to
provide protection of human rights greater than that provided by Strasbourg case law,
whether in the context of an absence of Strasbourg jurisprudence on the position, or in
56 Lord Steyn, “2000-2005: Laying the Foundations of Human Rights Law in the United
Kingdom”[2005] EHRLR 349, 361; R v Lyons (No.3) [2003] 1 AC 976, 997 per Lord Hoffmann;
Masterman (n 37) 74.
57 AF (n 30) 357.
58 Handyside (n 48) 754.
59 Ibid 754.
60 Harris, O’Boyle and Warbrick (n 50) 13.
33

The Human Rights Act Section 2(1) Taken into Account
the context of unfavourable case law. The courts’ timidity is largely based on
considerations of maintaining uniformity between ECHR nations. It shall be argued,
however, that such great uniformity is not sought by the ECHR in the first place, and
that in any case uniformity should be sought at a higher level of protection.
Firstly, a distinction is to be noted where there is no established case law. S.2(1) of the
HRA only requires that the Strasbourg position be taken into account when there is in
fact a relevant extant decision. It does not encourage any consideration of the fact that
Strasbourg has not established a position. As such, one would think that the court
should take into account the relevant factors of the case at hand as is ordinary.
There is no warrant for holding, as in Ambrose v Harris 61 , that a claim cannot succeed
simply on the basis that Strasbourg has not yet considered such a factual situation.
Certainly this position does not fall within the ambit of s.2(1). Further, it contradicts
Parliament’s intention in providing the terms, under the HRA as a whole, for the
courts to make a meaningful contribution to the development of human rights law. As
Lord Irvine rightly stresses, “it is this type of case – where the Strasbourg case-law
does not offer any clear answer – that gives our Courts the greatest scope to enter into
a productive dialogue with the ECHR, and thus shape its jurisprudence.” 62 In this
sense, his criticism is perfectly appropriate. Such a position is indeed unduly “selfabnegating”
and is to be lamented.
The same may be said of the courts’ refusal to go beyond the protections afforded by
Strasbourg. Lord Bingham’s statement in Ullah 63 represents the prevailing orthodoxy
among judges on this issue:
It is of course open to member states to provide for rights more generous
than those guaranteed by the Convention, but such provision should not be
the product of interpretation of the Convention by national courts, since
the meaning of the Convention should be uniform throughout the states
party to it. The duty of national courts is to keep pace with the Strasbourg
jurisprudence as it evolves over time: no more, but certainly no less. 64
It is surprising that this position originates from Lord Bingham, who took the different
position in the Lords Debate, as noted, of recognising the contribution British judges
have to make to human rights law, and regretting that until that time they had not been
permitted to make it. 65
Lord Irvine dismissed the argument in Ullah that judges should be concerned about
Convention rights bearing the same meaning throughout the Council of Europe,
pointing out that British judgments would not in any case be binding on other
members or on Strasbourg. Indeed, this concern seems to be somewhat overplayed.
One might add firstly that Convention rights are not in any case uniform. The margin
of appreciation granted varies from country to country, in effect giving a broader
meaning to terms such as “morals” and “public emergency” to some countries than to
61 Ambrose v Harris [2011] 1 WLR 2435.
62 Lord Irvine (n 1) 12.
63 R. (on the application of Ullah) v Special Adjudicator [2004] 2 AC 323.
64 Ibid 350.
65 HL Deb (n 35) col 1245.
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UK Law Students’ Review – 2013 – Volume 1, Issue 2
others, such that the restrictions on the rights, and therefore their content, may be
greater or lesser. Moreover, if one is committed to “keep[ing] pace with the
Strasbourg jurisprudence” 66 , one should equally note the statement in Handyside v
United Kingdom:
It is not possible to find in the domestic law of the various Contracting
States a uniform European conception of morals. The view taken by their
respective laws of the requirements of morals varies from time to time and
from place to place, especially in our era which is characterised by a rapid
and far-reaching evolution of opinions on the subject. 67
This has been further emphasised extra-judicially by the then-President of the ECtHR:
the Court's judgments are replete with statements that customs, policies and
practices vary considerably between Contracting States and that we should
not attempt to impose uniformity or detailed and specific requirements on
domestic authorities, which are best positioned to reach a decision as to
what is required in the particular area. 68
It is clear, therefore, that as a result of cultural and legal variations, there will
inevitably be some variation in the substantive meaning of the Convention rights.
Strasbourg has accepted this and, in the form of the margin of appreciation, it is very
much part of its jurisprudence. If Lord Bingham was thus committed to the latter, he
and the courts should not at once have been so concerned about national variations in
the law. This is not of itself an overriding concern.
Secondly, even if one desires a greater degree of uniformity, why should British courts,
if they are committed to the genuine protection of human rights, refrain from
attempting to achieve that uniformity on an improved position of the law? Uniformity
may indeed be desirable for fundamental principles, but at what level? If British courts
believe greater protection is needed for human rights in Britain than is currently
provided by case law on the Convention, might it not also be necessary to protect
human rights in other states? British courts should take the lead.
It might be objected that this goes beyond their role and their jurisdiction. Indeed,
much stress is placed on the separation of powers as a reason for not going further.
Lord Hope, for example, claimed
Lord Bingham's point…was that Parliament never intended to give the
courts of this country the power to give a more generous scope to those
rights than that which was to be found in the jurisprudence of the
Strasbourg court. To do so would have the effect of changing them from
Convention rights, based on the treaty obligation, into free-standing rights
of the court’s own creation. 69
This reasoning, however, is questionable. Parliament provided that the courts give
effect to “Convention rights”. As far as regards the meaning of those rights, it provides
66 Ullah (n 63) 350.
67 Handyside (n 48) 753.
68 Sir Nicholas Bratza, “The Relationship between the UK Courts and Strasbourg” [2011] EHRLR 505,
509.
69 Ambrose v Harris (n 61) 2447.
35

The Human Rights Act Section 2(1) Taken into Account
only that the courts “take into account” Strasbourg authority. As has been explained,
within this term there is substantial scope for discretion. Whereas one might rightly be
hesitant about adopting a meaning lesser than one provided for by Strasbourg and
thereby likely violating human rights, one need hardly be as diligent in providing too
much protection.
Moreover, it is not true that affording greater protection than Strasbourg has thus far
provided would take domestic courts beyond their jurisdiction. Affording rights
greater than those provided by Strasbourg case law does not transform them into
freestanding rights going beyond the Convention and the UK’s treaty obligations.
Strasbourg jurisprudence is more nuanced than this. Lord Hope’s position assumes
that it is alone Strasbourg’s role to define the Convention rights, just as Lord Bingham
claimed:
The Convention is an international instrument the correct interpretation of
which can be authoritatively expounded only by the Strasbourg court. 70
Similarly, Buxton LJ in the Court of Appeal contended that:
where an international court has the specific task of interpreting an
international instrument it brings to that task a range of knowledge and
principle that a national court cannot aspire to. 71
Under such an interpretation, one might well claim that, Strasbourg alone being
capable of defining Convention rights, it would be beyond the jurisdiction of British
courts – under a maximum duty to protect “Convention rights” – to afford a definition
greater than that already provided by Strasbourg.
However, whilst the ECtHR should certainly have final authority on appeal, it is not
specifically the case law that has absolute authority, because this may not have taken
into account specific objections relating to the particular domestic, legal and cultural
context in question. British society is indubitably especially liberal in its cultural
traditions, and as such should rightly be beholden to a higher standard. Simply
because the ECHR is a common minimum does not mean the obligations of a specific
country do not go further than to maintain that minimum. As former ECtHR Judge
Karel Martens has explained:
[domestic courts] should go further than seeing to it that the minimum
standards in the ECHR are maintained. That is because the ECHR’s
injunction to further realise human rights and fundamental freedoms
contained in the preamble is also addressed to domestic courts.” 72
In conjunction with this, one must remember that, under Handyside, it is for domestic
courts in the first place to secure the rights and freedoms the Convention enshrines. 73
Where they believe they have not done so, viz. that they have not provided sufficient
protection to secure the rights rather than believing that they have provided too much,
70 Ullah (n 63) 350.
71 R (on the application of Anderson) v Secretary of State for the Home Department [2002] 2 W.L.R.
1143, 1168.
72 Judge Sibrand Karel Martens, “Incorporating the European convention: The Role of the Judiciary”
[1998] EHRLR 5, 14.
73 Handyside (n 48) 753.
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UK Law Students’ Review – 2013 – Volume 1, Issue 2
there must be especial grounds for going beyond case law. It is part of the Strasbourg
jurisprudence that domestic courts may take the lead in interpreting and securing the
relevant rights. The meaning of the Convention is not, as Lord Hope seems to suggest,
fixed under treaty obligations by ECtHR case law until Strasbourg itself decides
otherwise on appeal. Unlike where potentially insufficient protection is granted by
domestic courts, it is difficult to imagine a domestic ruling that extends ECHR
protection being rejected by Strasbourg. Rather, it is to be seen as requisite under the
cultural traditions of the UK that domestic courts are better placed to understand, if
not under the UK’s ECHR direction to “further realise human rights and fundamental
freedoms” which is just as much addressed to the courts. 74 Therefore, where British
courts perceive the need for greater protection than provided in Strasbourg case law, it
is entitled to provide it within the ambit of the UK’s ECHR obligation.
One might note also, with regard to Lord Bingham’s Ullah statement cited above, that
Strasbourg jurisprudence does not “evolve” independently. Challenges to its position
are needed to prompt development. The then-President of the Court has written that:
[The Strasbourg Court] has been particularly respectful of decisions
emanating from courts in the United Kingdom since the coming into effect
of the Human Rights Act and this because of the very high quality of the
judgments of these courts, which have greatly facilitated our task of
adjudication. In many cases, the compelling reasoning and analysis of the
relevant case-law by the national courts has formed the basis of the
Strasbourg Court's own judgment. 75
From all this it is evident that British courts are very much a part of the ECHR
jurisprudence and a part of its evolution. Strasbourg recognises this, and so the British
courts are entitled to do so too. Interpretation of Convention rights as greater than that
provided in other cases by the ECtHR is therefore not beyond the legitimate role of
British courts.
Furthermore, the objection to the contrary within the Ullah principle is inconsistent. In
this particular respect, the courts have restricted themselves for fear of exceeding their
jurisdiction, denying themselves the ability to develop the law. Yet on the other hand,
they have allowed themselves the freedom to take into account considerations beyond
those applying to the protection of British law, namely that divergences of Convention
rights between nations is undesirable. It is well noted that the HRA merely
incorporated Convention rights into British law. 76 Where then does the court derive its
authority to consider issues of ulterior scope – to let what ultimately becomes British
law be decided by considerations purely of the Convention as applicable to other
states? This in itself is involving the courts in issues of wider diplomacy, foreign
affairs and statecraft. To deny protection felt otherwise necessary and within its
jurisdiction on the basis merely of its influence beyond Britain is to accept an
authority to make a wider impact, to make a “distinctive contribution to human
rights” 77 .
74 Judge Martens (n 72) 14.
75 Bratza (n 68) 507.
76 As per Lord Hoffman, In re McKerr [2004] 1 W.L.R. 807, 826.
77 HL Deb (n 35) col 1227.
37

The Human Rights Act Section 2(1) Taken into Account
This is not to argue that that approach should not be adopted. However, one should not
deny in one instance what one accepts in another. Accept it wholeheartedly. The
courts have the jurisdiction to make a “distinctive contribution to human rights” – both
within the framework of Strasbourg jurisprudence and within the HRA. Whilst it may
not be a duty in the terms referred to by Lord Irvine, this entitlement should be used to
raise human rights standards beyond that found in Strasbourg’s case law in
consideration of the wider principles at stake.
Indeed, if the UK is truly committed to liberty and democracy, and as such is truly
committed to human rights, its judges not only have the jurisdiction to make a
distinctive contribution, but they have indeed a distinctive contribution waiting to be
made. It is to be remembered that it was British lawyers who played a large part in
raising the standard to the level of the ECHR. It would be a shame if domestic courts
now deliberately withheld from raising the standard further. This is a truly liberal and
democratic country, and this should be reflected by the judiciary. So long as these
remain the principles enshrined by the ECHR, it is appropriate and fitting that British
courts should take the lead where they believe there is a lead to be taken. The
protection of Convention rights by the judges should not be done for the sake of
nominal ECHR-compliance only; it should be done for the sake of upholding the
underlying principles of the ECHR.
VII – Conclusion
On the whole, Lord Irvine’s criticism may be challenged to the extent that it rejects the
courts’ “exceptionalist” attitude to departing from Strasbourg case law. This approach
falls within the range of approaches permitted by s.2(1) of the HRA, and is further
supported by considerations of the UK’s obligations under international law, the need
to set a positive example, legal certainty, and the significant delays attending appeals
to Strasbourg. Nonetheless, Lord Irvine’s criticism is to be noted to ensure that the
allowance for departures from Strasbourg case law does not become merely
theoretical. Moreover, one might rightly echo his regret at the timidity of the courts
under the Ullah principle. British judges, like the British drafters of the ECHR, should
take the lead in raising the human rights bar.
38

VIOLENCE AGAINST WOMEN DURING ARMED CONFLICTS
Zara Qurashi, University of Nottingham
Violence against women has been described as the ‘greatest human rights scandal of
our time.’ 1 It relates to violence that is ‘directed against a woman because she is a
woman’ 2 , which may result in ‘physical, sexual or psychological harm or suffering’. It
includes any threats of violence, coercion or arbitrary deprivations of liberty, relating
to actions that occur in both the public and private sphere. 3 Violence remains a
universal issue for women and it has no social, economic or cultural boundaries. 4 It is
used as a means of social control to ensure patriarchal dominance and the derogatory
position of women throughout every society across the world. 5 There is still an
enormous amount of work that needs to be done to ensure the greater protection of
women and the eradication of violence in all its forms. It needs to be globally
accepted that gender-based violence is unlawful and that it will be effectively
punished.
This paper shall focus on the violence that women face during armed conflicts to
determine whether it is now time to break away from the focus on violence against
women. This paper only examines the shortfalls in international humanitarian law in
protecting women during armed conflicts and does not discuss the wider human rights
implications of violence against women. The different forms of violence that females
come across in warzones and in post-conflict settings will firstly be addressed to
reveal the extent of women suffering. The weaknesses in international humanitarian
law (IHL) in effectively protecting women will then be discussed and counterbalanced
against any positive advancements that have been made in trying to combat
violence against women during armed conflicts. Finally, the paper will consider
gender-based violence that is suffered by men in armed conflicts, which raises the
question of whether we need to stop only looking at the violence that women face by
taking a simultaneous approach that looks at the violence that both genders are subject
to.
I – Violence against Women during Armed Conflicts
The acute suffering that women face during wartime is because of their gender. Both
international and internal armed conflicts increase social tolerance towards violence 6
which subsequently results in females enduring abuse in the form of rape, forced
1
Amnesty International, ‘Stop Violence Against Women’
;
accessed 4 th April 2011.
2 Ibid.
3 Article 1 of the Declaration on the Elimination of Violence Against Women.
4 UNHRC ‘Report of the Special Rapporteur on ‘Violence against Women, its causes and
consequences’ (6 February 2003) UN Doc E/CN/.4./2004/66.
5 C. Niarchos, ‘Women, War and Rape: Challenges facing the International Tribunal for the Former
Yugoslavia’ (1995)17 Human Rights Quarterly, 650.
6 UNHRC, ‘Report of the Special Rapporteur on violence against women, its causes and consequences:
Violence against women perpetrated and/ or condoned by the State during times of armed conflict
(1997-2000)’ (23 January 2001) UN Doc E/CN.4/2001/73, 18.

Violence Against Women During Armed Conflicts
prostitution, sexual mutilation, strip searches, forced nudity, forced abductions and
‘marriages’ to soldiers to whom they then become a sexual slave. 7 The laws that
should protect them against such atrocities are inadequate because violence against
women is a well-established method of warfare that is routinely used to repress and
‘break the enemy’. 8 This section aims to reveal the gravity of the dilemma facing
women during armed conflicts and the discriminatory violence that they are subjected
to. The different forms of violence that women have to endure in wartime will be
discussed by looking at examples from both past and present conflict areas.
I(a) – RAPE as a method of warfare
Wartime rape has been largely accepted by historians and military leaders as an
inevitable consequence of war. It is a ‘peculiar and odious’ form of violence that
women have endured in all conflicts. 9 Since the twentieth century, rape has become a
more self-conscious weapon of war 10 , which has ensured the continuing debasement
of women. Wartime propaganda has reinforced the link between war and sexual
violence by States asserting that they need to protect ‘their women’ from the enemy. 11
The idea of women being ‘victims in need of protection’ exacerbates the effectiveness
of rape as a tool of warfare because it suggests that raping women will be one of the
worst things that the enemy could do; thus giving it more appeal.
Rape of women civilians has consisted of gang rapes which take place in houses,
detention centres, or in public. ‘Rape camps’ have also been a common feature in all
conflicts, where detained women are raped frequently as part of a wider military
strategy. 12 The Yugoslavian and Rwandan conflicts brought to the forefront of public
attention how rape can be used to terrorise a local population. Gender-based violence
was an essential method of assault in these conflicts and was used to impregnate the
victim so that they would give birth to children of mixed ethnic descent. 13 This was an
integral part of the genocide stratagem and has left long-term health concerns for
victims’ reproductive organs and psychological well-being. 14
Systematic rape and other sexual violence has also been a ‘hallmark’ of the nine-year
conflict in Sierra Leone, where thousands of cases have been reported of
individual/gang rapes, sexual assaults by inserting firewood and umbrellas etc into
women’s genitilia, combined with other forms of sexual slavery and mutilation. 15
7 Ibid, 14.
8 C. Niarchos (n5) 689.
9 Ibid 652-3.
10 Ibid 662.
11 Ibid 670.
12 Ibid 656-7.
13 Ibid 657-8.
14 UNHRC, ‘Report of the Special Rapporteur on Violence against Women: Report of the mission to
Rwanda on the issues of violence against women in situations of armed conflict’ (4 Feb 1998) UN Doc
E/CN.4/1998/54/Add.1, 11.
15 UNHRC, ‘Report of the Special Rapporteur on violence against women, its causes and consequences:
Violence against women perpetrated and/ or condoned by the State during times of armed conflict
(1997-2000)’ (n6) 28-29.
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UK Law Students’ Review – 2013 – Volume 1, Issue 2
Even in smaller conflicts that do not amount to civil war, the rape of women is used
as a means to insert power and dominance over a population. For example, in Haiti,
where the country has been plagued with political unrest for decades, rape and other
violence against women has been utilised as a form of ‘political pressure’ to ensure
democratic suppression and the maintenance of a totalitarian regime in the country. 16
Similarly, Human Rights Watch have recently documented that in Cote d’Ivoire, State
forces have raped and killed women in far western villages where it is perceived that
they may be supporters of the political opposition party. 17
The rape of women during conflicts has relentless and lasting consequences affecting
every aspect of a victim’s life. Women have been rejected by family members
because they are seen to be ‘ruined’ and ‘dishonoured’. A sad example of this
occurring is in the conflict between West Pakistan and Bangladesh, where
Bangladeshi women were routinely raped by the other side and sent to military
brothels. They were then unable to return to their families and husbands because they
had been outcaste and degraded. 18 There are also acute concerns for the female child
that is subject to sexual violence because of the greater psychological trauma that they
are likely to suffer. The likelihood of contracting sexually transmitted diseases,
especially for those girls that are not yet sexually mature, is also increased. Socially, it
is much harder for them to reintegrate back into their families once the conflict is over.
This is especially so if their ‘marriage’ to a soldier has been for a long time and that is
the only life that they have come to know as reality. 19
I(b)– Domestic Violence
The correlation between domestic violence and violence during war is also a major
concern. Evidence has shown how women are not only more vulnerable to outside
violence during conflicts; they are also at higher risk from suffering at the hands of
their loved ones within their own home. 20 For example, in Croatia, domestic violence
against women had increased by nearly 30 per cent since the outbreak of war. 21 The
situation in the Occupied Palestinian Territory also tells a similar story of gender
inequality being more pronounced by the conflict situation. The increased poverty and
social tensions within the region are contributing factors to the escalated domestic
violence due to patriarchal rule being used as a ‘defence mechanism to keep the
society intact’. 22 Refugee camps and detention facilities are another area where
women are subject to violence in the post-conflict phase. For example, in Burundi,
women have suffered high levels of sexual and domestic violence by other refugees
16 UNHRC, ‘Report of the Special Rapporteur on violence against women, its causes and consequences:
Report on the mission to Haiti’ (27 January 2000) UN Doc E/CN.4/2000/68/Add.3. 12.
17
Human Rights Watch, ‘Newsletter: The Week in Rights’
accessed 14 April 2011.
18 C. Niarchos (n5) 667.
19 (n6) 16.
20 Ibid, 18.
21 C. Niarchos (n5) 671.
22 UNHRC, ‘Report of the Special Rapporteur on violence against women, its causes and
consequences: Mission to Occupied Palestinian Territory’ (2 February 2005) E/CN.4/2005/72/Add.4,
14.
41

Violence Against Women During Armed Conflicts
and men living near to the refugee camps. 23 The fact that domestic violence escalates
during armed conflicts reveals the diverse forms of violence that women suffer during
wartime and how they can find no safe-haven anywhere. Effective international
policies are necessary and must be implemented in order to eradicate these problems
in the future.
I(c) – The Post-conflict setting and the role of UN Peace-keepers
There has been a shocking revelation that women must also fear violence from UN
peacekeepers that are sent into a country post-conflict to try and restore the rule of
law into the affected country. This is a disturbing reminder of the universal
acceptance that women can be treated violently within warzones without being
provided with any legal protection. Peacekeepers have been accused of engaging in
sex-trafficking, soliciting prostitution, forcing children into prostitution and fathering
babies which they have then left behind. 24 It was in 2004 that the media became
aware of the abuses that were taking place in the UN mission to the Democratic
Republic of the Congo (DRC), which then led to an official enquiry. In 2005 alone,
340 cases of abuse and sexual exploitation by peacekeepers were reported. 25 The
actual figures are likely to be much higher because these only represent the statistics
of those willing to come forward and reveal that they were sexually abused by UN
officials. Also, despite recent figures showing a decrease in sexual violence by
peacekeepers, the serious risk of sexual abuse still exists. For example, in 2007, 800
peacekeepers were suspended from their work in Cote d’Ivoire on allegations that
they had engaged in sex with minors. 26
Women in conflict zones become more vulnerable to abuse due to poverty and
unemployment, which makes prostitution seem like the only way possible to earn
money. However, the professional role that peacekeepers take to advance peace and
protect the local population whilst working for the UN, makes it even more
reprehensible that they have taken part in the sexual exploitation of women. 27 There is
also the human rights concern for those abandoned babies that are provided with no
money and protection from their fathers. Figures reveal that an estimated 24,500
babies were fathered by peacekeepers in Cambodia alone. 28 Ndulo validly asserts that
the magnitude of violence perpetuated on women during UN missions must mean that
peacekeepers either believe that their actions are not wrong or that they will not be
held accountable. This means that there is a need for better accountability
mechanisms within the UN to address the problem of sexual violence against women
and girls by peacekeepers. 29
23 (n6) 22.
24 M.Ndulo, ‘The United Nations Responses to the Sexual Abuse of Women and Girls during
Peacekeeping missions’(2009) 27 Berkeley Journal of International Law, 129.
25 Ibid 142.
26 Ibid 143.
27 Ibid 146.
28 M.Ndulo (n24) 157.
29 Ibid 144.
42

UK Law Students’ Review – 2013 – Volume 1, Issue 2
II – IHL and its Inadequate Protections for Women
IHL is the law that governs armed conflicts and is therefore the first place that we
should turn to see if women are sufficiently protected against violence in international
law. The specific provisions dealing with the protection of women are found in the
Geneva Conventions which state that ‘women shall be especially protected against
any attack on their honour, in particular against rape, enforced prostitution, or any
form of indecent assault.’ 30 This demonstrates how IHL is a gender-biased law that
only sees rape as a challenge to ‘honour’ rather than a violent attack on women
because of their gender. 31 By linking rape to honour, it fails to recognise the brutal
assault that take place on a woman’s body and psyche. It also links with society’s
perceptions that women are disgraced and deserve to be outcaste once they have
suffered this violence. Moreover, Article 147 of the Fourth Geneva Convention does
not describe rape as a ‘grave breach’ which refutes the serious and damaging effects
of rape and denies that it deserves universal jurisdiction. 32
Nevertheless, some progress has been made with the 1977 Additional Protocols to the
Geneva Conventions which prohibit ‘outrages upon personal dignity’. This includes
rape, forced prostitution and any other degrading treatment. 33 However, the reference
to ‘personal dignity’ still fails to recognise the seriousness of rape by giving it a
secondary status in IHL. Another issue is that despite the improvements that have
been made for women through the Protocols, their protective scope is limited because
they are not widely ratified and do not amount to customary international law. 34
Charlesworth and Gardam also reveal how a mighty 43 provisions of the Geneva
Conventions and their protocols actually deal with women and the effects of armed
conflict, yet they still remain inadequate because they only ‘deal with women in
relation to others and not as individuals in their own right.’ 35 Gardam is also correct in
believing that IHL looks at the protection of women from a male perspective, which
therefore ensures that the laws remain inherently discriminatory and unjust. 36
Women’s concerns are presented as less important compared to those of men because
the language of ‘protection’ is used rather than ‘prohibition’. 37 Gardam suggests that a
new protocol to protect women in times of armed conflict is necessary and is an
achievable goal. 38 However, another more credible option would be to focus on
reconceptualising the rules that already exist by mainstreaming gender issues within
them. 39 Whatever method is used, it is clear that IHL needs to be revised so that it
30 Article 27 of the Fourth Geneva Convention 1949.
31 C. Niarchos (n5) 672.
32 Ibid 674.
33 See Article 75 and 76 Additional Protocol I 1977 and Article 4 Additional Protocol II of the Geneva
Conventions.
34 C. Niarchos (n5) 676.
35 J. Gardam and H. Charlesworth, ‘Protection of women in armed conflict’ (2000)22 Human Rights
Quarterly, 159.
36 Ibid 67.
37 Ibid 159.
38 J. Gardam, ‘Women and the law of armed conflict: Why the silence?’ (1997) International
Comparative Law Quarterly, 77.
39 J. Gardam and H. Charlesworth (n35) 164.
43

Violence Against Women During Armed Conflicts
recognises rape as a distinct form of warfare that is used to persecute women because
of their gender. 40
III – International Awareness and the Progress made for Women during Armed
Conflicts
Despite all of the issues raised above, there has been a recent awareness made in
international law to try and recognise the extent of the violence that women endure
during armed conflicts. The progress that has been made will now be looked at to
determine whether it is now time to focus on something other than violence against
women.
III(a) – International Criminal Tribunals
After the grave human rights abuses that took place in the former Yugoslavia and
Rwanda, a change in politics was necessary to ensure that mass rape as part of a
genocide mission could never take place again. As a result, the International Criminal
Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal
for Rwanda (ICTR) were set up to bring accountability and future deterrence to those
responsible for human rights abuses within these regions. The International Tribunals
have played a crucial role in reforming international law so that it properly takes into
account the violence that women face during armed conflicts. The ICTY has ‘played a
critical role in setting jurisprudential benchmarks for the prosecution of wartime
sexual violence’ because for the first time, crimes of sexual assault have been deemed
to be grave breaches of the Geneva Conventions. They have also been given the status
of crimes against humanity, war crimes and genocide. 41 These are welcomed
improvements that have finally recognised sexual violence against women as a major
concern within armed conflicts that is in need of greater accountability mechanisms.
The ICTY decided in the cases of Tadic 42 and Blaskic 43 that rape and sexual violence
can form part of a widespread and systematic campaign of terror that will amount to
crimes against humanity and war crimes. The cases are significant because they
accept that sexual violence in and of itself does not need to be widespread and
systematic; it can be a constituent element of a widespread campaign of violence. 44
This ensures that single acts of rape which are just as damaging to an individual, will
not go unpunished. Furthermore, the ICTY also held that rape can amount to an act of
torture 45 and that individuals may be charged with crimes of sexual violence alone,
without requiring any other form of war crime to be committed. For example, in the
Furundzija case 46 , a person was prosecuted for the first time, for crimes of sexual
40 C. Niarchos (n5) 679.
41 (n6) 9.
42 Prosecutor v Dusco Tadic ICTY-94-1-T (14 th July 1997).
43 Prosecutor v Tihomir Blaškić ICTY-94-1-A (2000)
44 (n6) 9-10.
45 Celibici Camp ICTY-96-21-T (16 th November 1998).
46 Prosecutor v Furunzija (Judgement) ICTY-95-17/1- (10 th December 1998).
44

UK Law Students’ Review – 2013 – Volume 1, Issue 2
violence alone. The Tribunal also confirmed how oral sex could be considered a form
of rape as well as other ‘serious sexual assault[s] falling short of penetration’. 47
The ICTR’s contribution to the sexual violence discourse has also been highly
influential. In Akayesu 48 , the Court proclaimed that sexual violence can form an
essential element to a genocide campaign. The ICTR applied a broad definition to
what can amount to a crime of sexual violence by claiming that acts other than sexual
penetration- such as forced nudity- can also fall within this notion. 49 The International
Tribunals have taken a much broader understanding of what constitutes ‘rape’ than
many domestic legal systems have been willing to recognise. This is a positive
advancement in international law because it aims to prevent impunity for all forms of
violence that may be committed against women during conflicts.
Another recent achievement has been the creation of the ad hoc ‘Women’s
International War Crimes Tribunal’ that was set up in the year 2000 in Japan. This
Tribunal had to consider the liability of Japanese military and political officials for the
State-endorsed ‘comfort system’ that was used in the 1930’s and 1940’s to rape and
sexually enslave women from all across the Asia-Pacific region. The Tribunal was set
up 56 years after the actual crimes had been committed, which reveals how human
rights activists had worked relentlessly to ensure that crimes against women were not
left forgotten and unprosecuted.
The Women’s Tribunal decided that the fact that the comfort system lasted over 13
years with ‘literally thousands of facilities’ across some dozen countries, adequately
proved how the top authorities must have been involved in implementing the
system. 50 Therefore, Japan had breached many of its treaty obligations and
international laws- so the State should apologise to the rape victims and provide them
with compensation. This demonstrates how outside actors can help to bring State’s to
accountability for their actions, which is a remarkable step forward for women’s
rights. Nevertheless, the Tokyo Tribunal’s recommendations can only ‘encourage’
and ‘influence’ the State of Japan, providing no binding rules that must be followed. 51
Therefore, Japan is able to ignore the findings and recommendations that have been
made by the Tribunal in the same way that they have been denying their responsibility
for the comfort systems for the past 56 plus years.
III(b) – The ICC and UN Security Council Resolutions
Another major turning point has been the UN’s recognition that violence against
women during conflicts needs to end. Security Council Resolutions 1325(2000) and
1820(2008) have been passed, which call on all parties to a conflict to take special
measures to protect women and girls against violence. This significantly portrays how
the UN regards the prevention of violence against women to be a peace and security
issue 52 as well as a humanitarian concern. It also means that the need to protect
47 Ibid at [186].
48 ICTR- 96-4-T (2 nd October 1998).
49 (n6)12-13.
50 Transcript of the Oral Judgement delivered on 4 th December 2001 by the Judges of the Women’s
International War Crimes Tribunal on Japan’s Military Sexual Slavery [90]-[91].
51 Ibid at [70].
52 M.Ndulo (n24) 133.
45

Violence Against Women During Armed Conflicts
women from violence has moved into ‘high politics’ which gives the issue a sense of
importance and urgency that did not previously exist. 53
The ICC Statute also provides another invaluable contribution to ensuring greater
protection for women against violence by explicitly stating that rape and other gender
violence is seriously prohibited and can constitute crimes of genocide and crimes
against humanity. Article 7(1)(f) clearly claims that ‘rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization, or any other form of sexual
violence of comparable gravity’ can constitute crimes against humanity. In addition,
Article 7(1)(g) depicts how persecution of individuals because of their gender is
impermissible under international law. The ICC Statute further states that judges and
advisers with specific expertise on sexual and gender violence should be appointed to
ensure that proper skill and attention is given to the issue of violence against women.
The ICC Statute has made major progress in international law because gender-based
crimes are no longer linked to a woman’s honour or dignity. 54 It also depicts how
violence against women is worthy of international prohibition and prosecution.
However, although the groundwork is there to suggest that we can move away from
the focus on violence against women, it is submitted that the International Criminal
Court does not protect women to the extent that is necessary to allow for a shift in
attention. O’Connell has shown how the ICC has been unable to adequately deal with
gender-based crimes due to a lack of effective investigations and substantial proof to
prosecute individuals. For example, in the case of Lubunga 55 , the individual in
question was not charged with any gender based crimes despite common knowledge
that he had committed mass rape and violence against women in the DRC. Similarly,
with the cases of Katanga and Ngudjolo 56 , the ICC was only able to charge the
individuals for some of the gender based crimes that they had committed, thus
amounting to partial justice for the victims concerned. 57
Another disadvantage is that certain definitions within the ICC Statute are
incompatible with women’s rights. Article 7(2)(f) proclaims that forced pregnancy is
only prohibited when the perpetrator has an ‘intent’ to affect the ethnic composition
of any population. This raises the serious concern as to why all forced pregnancies are
not prohibited regardless of intent. The definition of ‘gender’ in Article 7(3) is also
problematic because it relies on the biological differentiation between men and
women, rather than taking a more acceptable approach that looks at the social
construction of gender. 58 Furthermore, the Court only has competence to deal with
those cases where States have consented in giving the ICC jurisdiction. Therefore,
State impunity can flourish when States decide to not bring a case forward to the
Court. Moreover, the ICC only has the capacity to deal with crimes that reach a
53 R. Charli Carpenter, ‘Recognising gender-based violence against civilian men and boys in conflict
situations’ (2006) 37 Security Dialogue, 85.
54 S. O’Connell, ‘Gender based crimes at the International Criminal Court’ (2010) 1 Plymouth Law
Review, 71.
55 ICC-01/04-01/06.
56 ICC-01/05-01/08.
57 S. O’Connell (n54) 73-75.
58 (n6) 9.
46

UK Law Students’ Review – 2013 – Volume 1, Issue 2
sufficient gravity threshold, meaning that all instances of violence against women
during armed conflicts cannot be prosecuted by the ICC. 59
IV – Violence Against Men During Armed Conflicts
Although the discussion has thus far been focused on the violence that women are
subjected to during armed conflict, there has recently been a growing concern that the
gender-based violence that men face in wartime has been left largely undocumented
and ignored. Therefore, it is submitted that it is time to take a more synchronised
approach that incorporates the male victim into wartime sexual-violence discourse. 60
This is because it would add greater validity to the mission to end gender-based
violence in totum; whether it concerns a male or female victim. As DelZotto and
Jones rightfully state, the sexual violence suffered by men in wartime is no less
traumatic than that which affects women 61 , which is why a gender-neutral multidimensional
stance is necessary to help both men and women fight against sexual
violence in the future. 62
Sexual violence against men has taken place in all conflicts throughout history.
Different forms of male rape occur, such as forcing victims to rape fellow victims as
well as having objects inserted into their bodies. 63 Enforced sterilisation can also take
place, with castration and other forms of mutilation being a common occurrence. For
example, in Tadic 64 it was recalled how victims were forced to bite off other men’s
testicles and were forced to perform oral sex on other victims. In addition, men have
suffered from enforced nudity and enforced masturbation during conflicts. 65 The most
recent example of the former occurring is in Abu Ghraib where photographic proof
revealed how male detainees were forced to take off their clothes and wear women’s
underwear over their heads. They were also forcibly placed into sexually derogatory
positions whilst naked and were then photographed. 66 The main question is whether
or not it is sufficient for these cases to come under inhuman and degrading treatment/
torture, rather than under the separate category of gender-based violence? Although
claiming that these actions are torture would not be wrong, it could have the effect of
denying that men too, can be victims of gender-based violence.
Sexual violence against men takes place for the same reasons that sexual violence
against women occurs, which portrays a similarity between both forms of violence.
Male sexual violence is used to disempower the victim and to rob them of their
masculinity through sodomy, forced nudity and castrations. It is also used to assert
power and dominance over the individual in the same way that happens with violence
59 S. O’Connell (n54) 78-9.
60 A. DelZotto and A. Jones, ‘Male-on-Male Sexual Violence in Wartime: Human Rights’ Last
Taboo?’ accessed 4 April 2011.
61 Ibid.
62 S. Sivakurmaran, ‘Sexual violence against men in armed conflict’ (2007) 18 European Journal of
International Law, 260.
63 Ibid 263-4.
64 Prosecutor v Dusko Tadic, Opinion and Judgement, IT-94-I-T.
65 S. Sivakurmaran (n62)265-6.
66 Ibid 256.
47

Violence Against Women During Armed Conflicts
against women. 67 It humiliates and stigmatises the victim and can have horrific
physical and mental consequences. 68 A powerful indication of the suffering that
gender-based violence can cause to men is the fact that they have been forced to rape
their own daughters. They have also been made to stand and watch their female
relatives being sexually abused. Little has been documented on the trauma that men
must face when seeing this happen and the psychological impact that this must have. 69
The improvements that have been made to recognise the violence that women face in
wartimes has had a negative impact on male victims because of their complete nonrepresentation.
For example, it has been claimed that no international organisation or
NGO has established a research programme that focuses on male victims of sexual
violence. 70 Male sufferers are less likely to admit that they have been subject to sexual
violence because of the stigma and fear this can cause. There is also a lack of
experienced professionals who look out for the signs of males being abused because
of the greater focus on women victims. 71 This is a big problem because although we
know that sexual violence against men exists in conflicts, we have no idea about the
extent to which this occurs. 72 There is also a lack of sufficient humanitarian assistance
available for male rape survivors, which is likely to have damaging consequences. 73
Therefore, Carpenter makes the valid assertion that it is impossible to know whether
women suffer more sexual violence during armed conflict than men, because no
comparable data exists. 74
Gender-stereotyping needs to be eradicated 75 and it has been argued that ‘the single
biggest gap in programming’ needs to be closed. 76 Although a real concern exists that
gender-mainstreaming could move the focus away from women and solely onto men,
this could be avoided if both male and female violence is dealt with concurrently
rather than as separate issues. 77 There needs to be a shift from focusing only on the
violence that women face in armed conflicts because male victims are currently left
voiceless, defenceless and unprotected by international law. In the same way that
gender-equality cannot occur without considering the effects on both men and
women; gender-based violence against women cannot be solved without also dealing
with the violence that men similarly face in matching circumstances.
67 Ibid 270.
68 W. Russel, ‘Sexual violence against men and boys’ (2007) 27 Forced Migration Review, 22.
69 R. Charli Carpenter (n53) 96.
70 A. DelZotto and A. Jones (n60).
71 S. Sivakurmaran (n62) 256.
72 Ibid, 254.
73 R. Charli Carpenter (n53) 95.
74 Ibid 87-88.
75 S. Sivakurmaran (n62) 275.
76 R. Charli Carpenter (n53) 87.
77 Ibid 99.
48

UK Law Students’ Review – 2013 – Volume 1, Issue 2
V – Conclusion
This paper has demonstrated the concerns that exist for women in conflict zones
because of the mass violence that they are subjected to because of their gender.
Current deficiencies in IHL and the recent improvements that have been made for
women in international law have also been looked at to reveal how slow progress is
taking place to allow for greater protections for women; yet many deficiencies still
exist that need to be resolved. Nonetheless, a slight change of focus is necessary by
looking at the gender-based violence that both men and women face in conflicts.
There still remains a major gap between the laws that have been put in place and the
political will of Member States to enforce these laws. Violence against women is the
most effective indication of the extent to which gender inequality exists throughout
every society across the world. It is a form of discriminatory force that is used to
degrade women by enforcing male dominance within domestic and social settings.
Despite this paper focussing on armed conflict settings, it must be remembered that
women are equally vulnerable in times of peace and in times of conflict because all
cultural backdrops have enabled men to exert arbitrary power over women. Only
when complete gender equality exists in every society across the world, will violence
against women no longer be a major global concern.
49

WAS THE ABOLITION OF THE DOCTRINE OF DOLI INCAPAX
NECESSARY?
Hannah Wishart, Manchester University
Abstract: This article considers how the 1997 New Labour election has changed what
it means to hold children criminally responsible in the criminal law. In order to do so,
this article will focus on examining New Labour’s decision to abolish the
longstanding doctrinal defence of doli incapax via asking whether the abolition of the
doctrine of doli incapax was necessary and founded upon proper grounds given the
low age of criminal responsibility imposed. As a result of such an enquiry it will be
revealed legal academics are still questioning the doctrine’s existence in the criminal
law more than 15 years after its abolition.
I – Introduction
Since New Labour succeeded as the new elected Government in 1997 the Youth
Justice System in England and Wales has been subjected to numerous changes. 1 One
of the biggest changes to the youth justice system came in the immediate aftermath of
the 1997 Government election when, the then Shadow Home Secretary, Jack Straw
MP, proposed a ‘six point policy plan for juvenile crime and disorder’. 2 In his speech,
Jack Straw proposed that the ‘New Labour’ Government were determined to
encapsulate a future where ‘young offenders plans to promote better parenting in the
family home to tackling anti-social behaviour. 3 It was the Government’s decision to
endorse a ‘No More Excuses’ 4 mentality through axing the common law defence of
doli incapax 5 which is the focus of this article. The reason why this decision was
greeted with such widespread concern was because the Government was moving
away from thinking of children as victims in need of ‘welfare’ protection within the
law, for a political inspired conception of children which encompassed a promise:
‘tough on crime, tough on the causes of crime’. 6 Jack Straw presented the above
agenda through New Labour’s fourth policy point as follows:
“At present we have medieval law-doli incapax- which assumes that
youngsters 10-13 are “incapable of evil” unless the prosecution can
prove the reverse. This legal presumption makes it very difficult for
youth courts to convict young offenders and start the process of
changing their offending behaviour.” 7
When it was announced the doctrine of doli incapax would be removed from the remit
of the criminal law, as mentioned, it caused much widespread concern in the legal
1 The Independent Commission on Youth Crime and Antisocial Behaviour, Responding to Crime and
Antisocial Behaviour, 2010, pp.11-12
2 Home Office, Crime Justice and Protecting the Public, (HMSO, 1990) CM 965, at para 8.3
3 Supra note. 2
4 Home Office, No More Excuses, (HMSO, 1997a) p.1
5 House of Commons Debates 19 th May, 1997, Column 387.
6 Home Office, No More Excuses, (HMSO, 1997a) p. 1
7 Supra note. 4

UK Law Students’ Review – 2013 – Volume 1, Issue 2
community. 8 To Keating 9 and Elliot 10 this is due to the fact that the abolition could
cause severe ramifications whereby children reaching the age of 10 years of age 11
would be exposed to the rigidity of the English criminal justice system with no
available defence which confirms that the child’s mental and physical status (although
in some cases this may not be true) would not the same as any adult offender. 12 In fact,
long after Jack Straw’s 1997 statement proclaiming that New Labour were to remove
the doctrine of doli incapax and the abolition itself in The Crime and Disorder Act
(1998) contrary to Section 34: ‘the rebuttable presumption of criminal law that a child
aged 10 or over is incapable of committing an offence is hereby abolished.’ The legal
community is still referring to and commenting on the 1997 decision and therein the
abolition in 1998. To many legal academics this is arguably the case because they are
displeased with its removal and how the English justice system currently treats,
approaches and punishes children: 15 years after the abolition of the defence of doli
incapax. 13
II – The Minimum Age of Criminal Responsibility
The age of criminal responsibility connotes the age at which the criminal justice
system can bring proceedings against an autonomous person for a criminal offence. 14
When the criminal court convicts the defendant of a crime, the defendant is to be held
criminally responsible and punished for breaking the criminal law. 15 In England and
Wales the minimum age of criminal responsibility is 10 years of age contrary to S.16
of The Children and Young Persons Act (1969). 16 Any child under 10 years of age is
therefore deemed to have legal immunity from the full rigours of the criminal justice
system.
Legal commentators have regularly made reference in youth crime literature to the
assumption that children below 10 years of age are subsequently ‘incapable of
committing evil’. 17 Yet no reference has been made as to what sort of ‘evil’ acts the
child was incapable of committing or how incompetent the child typically would have
been below 10 years of age to make them fully immune from the criminal law.
Traditionally, this line of thinking derived from the establishment of the ‘right and
wrong’ responsibility tests implemented by 14 th century common law judges in order
8
crimes.html
http://www.telegraph.co.uk/news/uknews/1561917/Children-under-10-suspected-of-3000-
9 Keating. H, ‘The Responsibility of Children in the Criminal Law’, 19 Child and Family Law
Quarterly, 2007 at 2
10 Elliott. C, ‘Criminal Responsibility and Children: A New Defence Required to Acknowledge the
Absence of Capacity and Choice’, 75 Journal of Criminal Law, (2001) at 296
11 The Criminal Justice Act (1963)
12 Wiejers. I, Duff. R. A, Punishing Juveniles, Principle and Critique, Hart Publishing, 2002, p. 116
13 The Independent Commission on Youth Crime and Antisocial Behaviour, Responding to Crime and
Antisocial Behaviour, 2010, pp.11-12
14 Tadros. V, Criminal Responsibility, Oxford University Press, 2005, p.21
15 Supra note. 14
16 Section 16 of The Children and Young Persons Act (1969)
17 Arthur. R, Young Offenders and the Law, How the Law Responds to Youth Offending, Routledge,
2010, p.43
51

52
The Doctrine of Doli Incapax
to determine the child’s competency between positive acts and crimes. 18 For
Blackstone the determination of criminal responsibility rested with a test which
considered whether the child defendant was able to discern between ‘good and evil’
based on the strength of the child’s mental processing of judgement and the capacity
of understanding the difference between the two. 19 Arguably, this does not mean that
a child of 7 years as a consequence is incapable of committing a crime if the child is
morally unaware of what is ‘right and wrong’ or ‘good and evil’ today, merely
because legislation supports children from 10 years of age as legally blameworthy for
breaking the criminal law: this can be quite the opposite. 20 From 32 out of 43 police
forces around the country in 2007 revealed that almost 3,000 crimes were committed
by children under 10 years of age. 21 Yet given the statutory age of criminal
responsibility in England and Wales a child below 10 years of age will continue to be
held unaccountable for committing crimes.
Compared with the rest of Europe, England and Wales can be considered to have one
of the lowest thresholds for criminal responsibility: currently 10 years of age. 22 This is
indicative when in contrast other countries such as; Norway (15 years), Spain (16
years) and Belgium (18 years of age). 23 Even the United Nations Committee on the
Rights of the Child in 2007 expressed that a minimum age of criminal responsibility
below that of 12 years of age is to be considered ‘internationally unacceptable’. 24 To
the United Nations this is because children respectively under 12 years of age do not
have the capacity, ability and maturity to infringe the law akin the reasonable adult
offender. 25 Yet the criminal justice system in this country will punish children for
crimes at the age of 10 irrespective of international recommendations and European
practices. From the child’s point of view, the child will be held criminally responsible
for breaking the law alike the adult offender; yet unlike the adult offender, the child
may only have limited and or inaccessibility to legal right of passages in England and
Wales. Legislation prohibits a child from purchasing small animals until 16 years of
age, 26 buy fireworks 27 and similarly buy alcohol until 18 years of age. 28 This is
perhaps why there has been much concern with regards to the decision to abolish the
doctrine of doli incapax; given the fact that New Labour may have failed to take into
account what it means to be entirely responsible in the law. In this case, it not only
18 Crofts. T, The Criminal Responsibility of Children and Young Persons, A Comparison of English
and German Law, Ashgate, 2002, p. 8-13
19 Blackstone, 1769:23-4
20 Fionda. J, Devils and Angels Youth Policy and Crime, Hart Publishing, 2005, p.12
21
crimes.html
http://www.telegraph.co.uk/news/uknews/1561917/Children-under-10-suspected-of-3000-
22 Section 16 of The Children and Young Persons Act (1969)
23 Millet. S. P, ‘The Age of Criminal Responsibility in an Era of Violence: Has Great Britain Set a New
International Standard’, 28 Vanderbilt Journal of Tranational Law, (1995) at 295
24 United Nations Committe on the Rights of the Child, Convention: Children’s Rights in Juvenile
Justice, (2007) CRC/C/GC/10, paragraph 32.
25 Ibid n. 24 para. 31.
26 Contrary to The Animal Welfare Act (2007)
27 The Fireworks Regulation (2004) Section. 4
28 The Licensing Act (2003) Section. 145

UK Law Students’ Review – 2013 – Volume 1, Issue 2
means that one is to be held to a standard of criminal responsibility for not upholding
the law but it also means that one has a certain level of individual autonomy to
perform justified actions which are entitlements and arguably a testament to one’s age
and degree of responsibility within society. Today there is a considerable age-gap
and discrepancies between the degrees of responsibility a child must be expected to
uphold, as opposed to what the child will receive in return for being subjected to
criminal responsibility. This is clearly evident with how the rest of Europe rationalises
a higher age of criminal responsibility and responds in the criminal law in contrast to
England and Wales.
III – The Legal Theory of Criminal Responsibility
When reconciling the attachment of criminal responsibility theorist Dubber
transcribes the criminal law should be concerned with answering one single question:
‘who is liable for what? 29 From this style of questioning within the criminal law it is
easy to contend with why Jack Straw articulated that the doctrine ought to be removed.
Generally, when the criminal court convicts a defendant for an offence the defendant
is held to be criminal responsible for his conduct. 30 From this it can be contended that
the idea of being held to a standard of criminal responsibility is central to the criminal
justice system. The reason why can to some extent be considered simple; most
theorists 31 hypothesise that the criminal law’s primary concern is to prevent harm and
to do so involves determining the defendant’s degree of culpability, so as to bestow a
proportionate punishment for the commission of the offence. 32
Some theorists further speculate that the criminal law should act retributively or
employ a theory of restorative utilitarianism to prevent harm from occurring in the
future. 33 A retributivist theorist, for example, would be concerned with determining
the degree of the defendant’s criminal responsibility from the ethos of ‘no one can
justly be punished unless he is morally responsible’. 34 In contrast, Tadros believes
that it may not be morally ‘just’ to punish the young or mentally fragile agents for
crimes, when it could be argued they did not possess a sound and competent mind. 35
Clearly, it is plausibly within the remit of a child to make a rational choice, for
example to steal money so he can buy food, or kill a man out of an emotional loss of
self control as seen in DPP v Camplin. 36 Nevertheless, the question that is persistently
being raised in criminal law literature is whether the law should hold either of these
children (given their situations) as morally responsible agents for their lacking in
moral emotions and understanding of right and wrong? For Arenella, the justification
for attributing criminal responsibility falls onto the ideological notion of justice that
29 Dubber. M. D, Criminal Law: Model Penal Code, New York University Press, 2000, p.5
30 Alexander. L, Ferzan. K. K, & Morse. S, Crime and Culpability A Theory of Criminal Law,
Cambridge University Press, 2009, p.4-5
31 Duff. R. A, ‘Harms and Wrong’, Buffalo Criminal Law Review, 2001, Vol 5 at 13
32 Alexander. L, Ferzan. K. K, & Morse. S, Crime and Culpability A Theory of Criminal Law,
Cambridge University Press, 2009, p.4-5
33 Fletcher. G, Basic Concepts of Criminal Law, OUP, 1998, p.30
34 Williams. G, ‘The Criminal Responsibility of Children’, 1954, Crim LR at 494
35 Tadros. V, Criminal Responsibility, OUP, 2004, p. 134
36 DPP v Camplin (1978) AC 705
53

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the criminal law is to punish on the basis of what the offender deserves. 37
Subsequently this would mean that regardless of the age of the defendant, if it is
known that a defendant fulfilled the actus reus and mens reus of an offence, 38 they
deserve punishment because of the harm that has been produced. 39 This is perhaps
regardless of the England and Wales minimum age of criminal responsibility. 40
Yet as Elliott contemplates there is a difference between accountability and
responsibility for the purposes of attaching criminal liability. 41 This is due to the fact
that there are specific preconditions for imposing criminal responsibility which do not
solely relate to what can be proven through what the defendant performed with
regards to sufficing the actus reus of the crime. 42 This can be seen from Hart’s
paradigm of criminal responsibility:
“Those....we punish should have had, when they acted, the normal
capacities, physical and mental, for abstaining from what it forbids,
and a fair opportunity to exercise these capacities.” 43
When courts determine the defendant’s degree of criminal responsibility, Hart has
demonstrated that two limbs are necessary; the defendant must possess the minimum
levels of mental and physical capacities and have a fair opportunity to perform the
defendant’s attributed capabilities. 44 Presuming, that a defendant did in fact have a
‘fair opportunity’ to act in accordance with their capabilities, what is of crucial
importance in determining criminality, as opposed to moral accountability for one’s
actions; arguably comes from questioning and determining the characteristics of the
defendant. It may be that these characteristics are obvious when one generally
compares children to adults. For instance, a child of 12 years of age may be
considerably smaller in height and weight in contrast to that of a 40 year old muscular
6ft tall man. Neuroscience research reflects these observations because biologically a
child of 10 years of age does not have the same physical composition to that of an
adult. 45 An average adult’s height and weight ratios physically differ to that of a child.
An adult has greater muscle mass to protect their organs from many severe injuries. 46
Children on the other hand have smaller pliable skeleton systems which account for
their small bones and physical appearance. 47 These physical dissimilarities
37 Arenella. P, ‘Character, Choice and Moral Agency: The relevance of Character to our Moral
Culpability Judgements’, Social Philosophy and Policy, Vol 7(2), 1990 at 62
38 Arthur. R, Young Offenders and The Law, How the Law Responds to Youth Offending, Routledge
Press, 2010, p. 43
39 Dubber. M. D, Criminal Law: Model Penal Code, New York University Press, 2000, p.5
40 Ibid note. 39
41 Elliott. C, ‘Criminal Responsibility: A New Defence Requirement to Acknowledge the Absence of
Capacity and Choice’, 75 Journal of Criminal Law, 2011 at 302.
42 Ibid note. 41
43 Hart. H. L. A, Punishment and Responsibility, Oxford University Press, 2008, p. 152.
44 Ibid note. 43
45 The Royal Society, Brian Waves: Module 4 Neuroscience and the Law, December 2011, p.14.
46 http://www.ehow.com/info_8501147_characteristics-adults-vs-children.html
47 Ibid note. 46

UK Law Students’ Review – 2013 – Volume 1, Issue 2
independent from any other information affirm that children are not on-par so-tospeak
to the average adult.
Notwithstanding the noticeable physiological differences, it could be correspondingly
stated that children are different to adults when one examines the mental and
emotional characteristics of both children and adults. The latest neuroscience research
provides that up until the age of at least 20 years children undergo many comparable
changes in mental, emotion and physical functioning such as: decision-making,
impulsivity, memory and puberty. 48 Although it may be the case that in some court
proceedings a child may exhibit the same mental and physical attributes, or as Hart
refers ‘normal capacities’ to that of an adult offender. 49 Yet questioning who the
defendant is can be of crucial importance, because whether the defendant is in fact a
child of 11 years of age as opposed to an adult offender of 25 years of age. This could
potentially effect and determine how the defendant acts, because their mental and
physical attributes may significantly differ. If a child of 10 years struggles to
communicate to another child in a playground how can such a child be considered to
have the same normal capacities akin to the average adult for the purposes of
attaching criminal responsibility and punishment? This is perhaps why there has been
such widespread scrutiny and warning since the abolition as the doctrine understood
and protected children who exhibited less than ‘normal’ mental, emotional and
physical capacities. 50 Today, a child who exhibits less than normal adult capacities
would be left without a doli incapax defence.
IV – The Meaning of doli incapax
The doctrine of doli incapax operated in England and Wales as a tool with two
significant purposes. Firstly, it bestowed children below the minimum age of criminal
responsibility with exemption from the criminal law. 51 Secondly, it provided children
from the minimum age of criminal responsibly to 13 years of age with a defence
which recognised the possibility that some children (emphasis placed on some, and
not all children) were incapable of understanding the truancy of his or her(s) criminal
actions because they did not have the prerequisite ‘normal’ 52 capacities akin to the
adult offender. This was encapsulated through the use of a rebuttable presumption. 53
The rebuttable presumption sanctioned the prosecution to adduce evidence to infer
that the youth offender had the knowledge and an understanding of the seriousness of
their actions in order to attach criminal responsibility. 54 In order to do so, Goff LJ in
JM (A Minor) v Runeckles (1984) 55 illustrated in finding the child mentally and
physically capable akin to the adult offender, the prosecution were prohibited from
revealing evidence of the child’s actions as being naughty or mischievous. The
48 The Royal Society, Brian Waves: Module 4 Neuroscience and the Law, December 2011, p.14.
49 Hart. H. L. A, (2008), p. 152
50 Refer to discussion on page one
51 S.34 of The Crime and Disorder Act (1998)
52 Hart. H. L. A, (2008), p. 152
53 Goldson. B, Muncie. J, Youth Crime and Justice: Critical Issue, Sage Publications, 2006, p.12
54 Pickford. J, Youth Justice: Theory and Practice, Cavendish Publishing, 2000, p. 56
55 JM (A Minor) v Runeckles (1984) 79 Cr App R 255
55

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The Doctrine of Doli Incapax
evidence must have gravitated towards adducing the seriousness and graveness of the
child’s actions as confirmed in R v Gorrie. 56 It is worth to note that evidence of
observation cannot deduce evidence of the child’s criminality: A v DPP (1992) 57
bequests as much. So the courts were informed to avoid:
“The trap of applying the presumption of normality.. that any child of
the appellant’s age in today’s society would know perfectly well that to
behave in this way was to behave in a way that was seriously
wrong”. 58
The presumption was on the prosecution to find if the child was fully capable and
aware of the serious nature of their actions. Only then would the child take criminal
responsibility for their actions barring the above procedural determinations. 59 The
famous publicised case of the murder of James Bulger shows the rebuttable
presumption in practice. From the psychiatric assessments of the two co-defendants,
Thompson and Venables, the prosecution revealed that both children were capable of
knowing right from wrong. 60 To Jack Straw ‘both children were appropriately made
responsible for their actions’. 61 The two co-defendants, Thompson and Venables,
were charged with murdering James Bulger. Their guilt was not merely weighted
upon the presumption that they were capable of understanding the truancy of their
actions. Both defendants were judged by 12 jurors who were instructed to assess their
blameworthiness according to the standard of proof of ‘beyond reasonable doubt’ for
the death of James Bulger. 62 From the 12 jurors’ assessment of evidence provided by
the defence and prosecution, the two defendants were held criminally responsible.
From this perspective it is hard to assimilate at this stage, why the government
decided to abolish the doctrine of doli incapax. Historically, the doctrine had dealt
with hundreds of youth cases in its time, concluding when necessary (upon the
individual merits of the child) whether a child was capable of understanding the
nature of his actions to be held criminally culpable. 63
Thus far, it could be claimed the doctrine of doli incapax served its purpose in relation
to Straw’s proposition in being able to punish young offenders for committing
criminal offences. The murder convictions of Venables and Thompson was clearly
indicative of the doctrine’s ability to perform in a manner which inculpates rather
exculpates children for their criminal behaviour. 64 Even if it could have been
established (with the use of the doctrine of doli incapax) the defendants’ did not
understand their heinous actions; the doctrine of doli incapax upon this basis could
56 Gorrie (1918) 83 J.P 136
57 A v DPP (1992) Crim LR 34
58 W (A Minor) v DPP (1996) Crim LR 320
59 Ibid note. 58
60 R v Secretary of State for the Home Department, ex parte Venables; R v Secretary of State for the
Home Department, ex parte Thompson (1997) 4 LRC 411
61 Ibid note. 60
62 Ibid note. 60
63 See A v DPP (1992) Crim LR 34
64 Supra note. 60

UK Law Students’ Review – 2013 – Volume 1, Issue 2
have exculpated the youths for the killing of Bulger. Although this was not the case,
the doctrine plausibly served its purpose with regards to its basic core functions: to
either provide a defence or inculpate on the basis of the rebuttable presumption for the
co-defendants. Yet New Labour were of the opinion that it was still necessary to
remove the doctrine’s defence and presumption from the remit of the criminal law
because they were of the belief that it failed to make young offenders as criminally
responsible for their conduct when in operation. 65
V – The Emergence of ‘New Labour’
‘New Labour’ in an attempt to learn from the administrational mistakes of the
previous elected party conveyed a message to the public in relation to youth crime in
England and Wales. 66 The message was that Labour was to take action by ‘getting a
grip on youth crime’. 67 A 1997Home Office White Paper titled: ‘Tackling Youth
Crime’ maintained the changes Labour wished to undertake. The paper concluded that
New Labour’s agenda was to modernise the youth justice system by abolishing the
doctrine of doli incapax. 68 One of the reasons why is presented in paragraph 14, the
government believed at that particular time there would be practical difficulties if the
rebuttable presumption existed because there would be an increase in youth offenders
relying on the defence of doli incapax. 69
Ironically, the rebuttable presumption undermined any ‘benevolent protection’ which
was recognised by the defence of doli incapax. 70 Bandalli suggested that academic
opinion was swayed toward the doctrine being misconceived, because public and
media outlets connoted the child as being ‘misspent’ 71 and capable at the age of 5
years of age of knowing the difference between right and wrong. 72 The representation
of the ‘misspent’ child merely reflects how the new agenda was interwoven in the
judicial system. As Lord Lowry in C v DPP 73 observed that when the courts lacked
cogent evidence; the courts ‘often treat the rebuttal as a formality’. And in the
magistrates’ courts ‘in practice, juvenile courts rarely look(ed) 74 at the doli incapax
requirement’. 75 This is further evidenced by a 1992 police sample which showed 76.2
percent of juvenile suspects confessed their guilt in police interviews; and at this
65 Supra note. 4
66 Supra note. 4
67 Michael. A, Getting a Grip on Youth Crime, London Labour Party, 1993
68 Home Office, Tackling Youth Crime: Reforming Youth Justice, Consultation Paper, London HMSO,
1997
69 Ibid n. 68
70 Crofts. T, ‘Rebutting the Principle of Doli Incapax’, JCL 62(2), 1998 at 185
71 Audit Commission, Misspent Youth...Young People and Crime, London, Audit Commission, 1996
72 Bandalli. S, ‘Abolition of the Presumption of Doli Incapax and the Criminalisation of Children’, The
Howard Journal, 37(2), 1998 at 115
73 C (A Minor) v DPP (1995) 2 All ER 43, p.63D-F; Manchester 1986:8
74 Word Added
75 Ibid n. 68
57

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The Doctrine of Doli Incapax
phase it is worth highlighting that in the criminal justice process the rebuttable
presumption could only be used when in court. 76
This information may have supported New Labour’s core incentives to make young
offenders criminally responsible for their actions in a way which excluded the
doctrine of doli incapax. Yet taking into consideration that the doctrine was only used
in court, the apparent ineffectiveness of the doctrine could not have been justified
simply from the number of guilty pleas given in police stations. 77 This line of
reasoning was evidentially weak, even if the doctrine was applicable and used by
children in the police processing stages prior to it being used in the courts as a
defence. From the evidence presented above, the Government’s claim that the
doctrine’s functionality was hindering criminal prosecution may not have had
anything to do with fearing that the doctrine was inadequate or ineffective when it
tried to inculpate with regards to the presumption. In the House of Lords decision of
C (A Minor) v DPP Lord Lowry was of a similar belief when he inscribed that there
were ‘popular and political overtones’ 78 which surrounded the abolition. 79 To note
there was a possibility that further use of the doctrine would subject children to a
future defence in criminal proceedings, if not abolished in 1998. However research
has advocated that no such problem existed whereby more children would have relied
on the doctrine: the presumption was rarely used. The portion of youth offenders
pleading guilty in the magistrates was 81 percent and a mere 7 percent was due to a
shortage of trials in 1995. 80 This in itself infers that perhaps the problems New Labour
where justifying were imagined since Lord Parker CJ in B v R was still of the belief
that 'the lower the child in the scale between 10 and 14, the stronger the evidence
necessary to rebut the presumption'. 81
VI – Was the Abolition Necessary?
It would seem reasonable to assume that the decision to remove the doctrine of doli
incapax from the law would have been one of conclusiveness. The doctrine of doli
incapax was thought to be an irrelevant tool the criminal law no longer needed given
Jack Straw’s opinion of it being a ‘medieval law... which assumed that youngsters
between 10-13 were “incapable of evil”. 82 Yet for the courts to still be subjected to
questioning, replying and presiding over the doctrine of doli incapax, even though
S.34 clearly stated that the doctrine, including the presumption, was abolished in 1998
merely reveals that the courts are still struggling to bridge the gap between imposing
criminality liability and young offenders when taking into account the physiological,
mental and emotional underdevelopments of children. 83
76 Evans. R, ‘The Conduct of Police Interviews with Juveniles’, The Royal Commission on Criminal
Justice Research, Study 8, London: HMSO
77 Loc cit note 4
78 C (A Minor) v DPP [1995] 2 W.L.R. 383
79 Lynch. J, ‘Hello Doli, The Case for the return of the Presumption’, Archbold Review, 2010, at 4
80 Home Office, Criminal Statistics For England and Wales, 1995, table 6.2
81 B v R (1958) 44 Cr App R1
82 Jack Straw, Labour Government Speech to Police Federation, 21/05/1997
83 Supra note. 10

UK Law Students’ Review – 2013 – Volume 1, Issue 2
This was clearly evident in R v JTB (2009). The appellant (charged with committing
several counts of sexual activities) sought advice from the House of Lords because he
believed that he was unaware of the wrongness of his actions. 84 To note in 2009 it
was generally explicit to the courts from Section 13 of The Sexual Offences Act
(2003) that the youth (from the evidence presented) had committed the identified
counts of sexual activities. Yet this criminal offence once rested upon a rebuttable
presumption, akin to that of the doctrine of doli incapax. A presumption was
implemented to minors under the 14 years of age in order to relieve children from
criminal responsibility. Alike the doctrine of doli incapax’s abolition in 1998 this
presumption was removed from the ambit of the criminal law by the way of The
Sexual Offences Act (1993).
If doing away with the doctrine of doli incapax was the correct and necessary decision
since it was regarded as no longer needed; then, why would the appellant seek advice
in relation to the doctrine when it had been clearly discontinued for 11 years? This
was the problem in Crown Prosecution Service v P (2007) 85 when it was contended
that P did not have a sufficient level of maturity and capacity to understand criminal
proceedings or an ability to understand the serious nature of his actions. 86 . Several
psychiatric reports concluded P was unfit to stand the trial process. 87 However many
judges were still of the belief that the doctrine existed, Smith L.J is an example of this
when he reconciled that if ‘the effect of s.34 [of the Crime and Disorder Act (1998) is
to abolish the presumption that a child is doli incapax but not the defence itself.’ 88 If,
as Jack Straw mentioned New Labour’s aim was to hold youth offenders criminally
responsible in a way that ‘gets a grip on youth crime’; 89 presumably, parliament ought
to have enshrined a clear intention to abolish the doctrine: including the defence and
presumption in 1998. The then Solicitor- General gave a different opinion on the
matter in the second reading of Crown v P:
'The possibility is not ruled out, where there is a child who has genuine
learning difficulties and who is genuinely at sea on the question of
right and wrong, of seeking to run that as a special defence. All that the
provision does is to remove the presumption that the child is incapable
of wrong' 90
Clearly, it is obvious from the Solicitor-General’s opinion in Crown v P there was
(perhaps still is an) imperative to hold on to the defence of the doctrine of doli
incapax, because it is possible children do not possess the minimum capacity
standards to be held criminally responsible. If the government’s aspirations were to
‘get a grip on crime’, as it has been frequently referenced as such in this article it
seems precarious given the above judicial interpretations of S. 34 and the New
Labour’s aims and objectives (to abolish the doctrine) that their true intentions were
84 R v JTB (2009) UKHL 20
85 Crown Prosecution Service v P (2007) EWHC 946
86 Ibid note. 85
87 Ibid note. 85
88 (2007) 171 JP 349 at 351
89 Michael. A, Getting a Grip on Youth Crime, London Labour Party, 1993
90 (Hansard, HL, vol. 584, cols 595-596, 16 December 1997).
59

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The Doctrine of Doli Incapax
not clearly specified in legislation. 91 Arguably, it could be retained there were clear
indicators as to parliament’s underlying intentions. Crofts determined from a Home
Office circular that children from the minimum age of criminal responsibility (10
years) will be treated as the same as any other adult offender. 92 Yet this report could
not have singlehandedly justified the intended construal and meaning of S.34. This is
visibly indicative when one considers the then Solicitor-General’s reasoning of the
possibility that the underlying doctrinal principle may have even evaded abolition. 93
To Williams regardless of the mischief interpretation of S.34 the criminal law comes
down to a simple annotation:
“As a matter of policy it is highly desirable that a child who has
committed what, for an adult, would be a crime, should be put to
answer, even if he is afterwards acquitted on the ground that he did not
know his act to be wrong”. 94
The logic of Williams’ statement envisions a strong retributivist node of thinking,
which it could be argued would contravene with Article 6(2) of the European
Convention on Human Rights (ECHR) because ‘everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to law.’ 95 If the
child must be ‘put to answer’ in a manner which would neglect Hart’s preconditions
of criminal responsibility, there could be a motivation which initially infers guilt for
the crime performed, based upon who the defendant is. This could be the case as
Williams’ remarks it could be ‘just’ to articulate that the law ought to respond to
attaching criminal responsibility from political policy standpoints; but would
Williams strong view differ if the defendant was P?
It could be maintained that for a defendant like P being ‘put to answer’ 96 may not be
the correct approach. A fair trial can only appropriately function when there is a
defendant who has the understanding and capacity to identify the rationale of the
court trial itself and inter alia comprehend the wrongness of their actions. 97 The
European Court of Human Rights similarly advocates the same rationale that a
defendant should be fit to stand trial contrary to Article 6. 98 As a result in P it was the
Divisional Court decided that court proceedings were premature in the light of the
defendant’s lack of capacity to distinguish right from wrong. 99
Therefore, can Williams’ desirable imperative to impose court proceedings upon a
minor who has below the minimum mental and physical capacities as P benefit the
criminal law? A weak retributivist who places consequentialist considerations at the
91 Walker. N, ‘The End of an Old Song’, NLJ (1999) 149 at 64
92 Crofts. T, ‘Divisional Court: Children: Doli Incapax’, JoCL (2008) 72(8)
93 Supra n. 85
94 Williams. G. L, ‘The Criminal Responsibility of Children’, Criminal Law Review, (1954), 493, at
498
95 Article 6(2) of The European Convention of Human Rights
96 Telford. M, ‘Youth Justice: New Shoots on a bleak landscape - - Director of Public Prosecution v P’,
CFLQ (2007) at 506
97 Wortley. N, ‘No Defence of Doli Incapax: R v JTB (2009) UKHL 20’, 73 J. Crim L (2009) at 309
98 SC v United Kingdom (2004) 40 EHRR 10
99 R v JTB UKHL 20

UK Law Students’ Review – 2013 – Volume 1, Issue 2
heart of the criminal law may support Williams’ contention to make a young offender
stand trial. 100 Presumably, if the young offender had the pertinent level of
understanding to withstand the trail process with an ability to convey the truancy of
their actions, then perhaps Williams’ proposal could be conducive. Yet unless there is
an additional good benefit to make a defendant like P be ‘put to answer’, Williams
may fail to receive support from a retributivist. 101 When the doctrine of doli incapax
was in operation the doctrine (defence and presumption) shielded the child from the
damage ensued from the criminal justice system. 102 Whether or not the presumption
itself actually made or prevented convictions can only be a matter of fact, Keating
claimed the presumption served as a broad shielding ensemble ‘marking the transition
stage of a child’s life as special’. 103 Subsequently, once the abolition of the doctrine of
doli incapax materialised the protective function ceased to exist. Today youth
offenders like P and R v G (2003) 104 will be as a result subjected to the full rigours of
the criminal law.
The doctrinal test is unquestionably flawed, it cannot be denied that the doctrine did
not go through a process of uncertainty with regards to developing a test to determine
if a youth was aware of the seriousness of his/her actions, as opposed to being
naughty and mischievous. 105 The doctrine (presumption) has never been consistently
applied in practice as a result the doctrine was akin to inconsistent verdicts. 106 It
follows then that Laws J observed in C (A Minor) that the presumption was a
‘disservice to the criminal law’. 107 At the time the abolition of the doctrine of doli
incapax may have been the correct decision, because it has been argued it was an
outdated concept that could not reflect the improvements to formal education and the
knowledge acquired through schooling. 108 It has been contended by several academics
that the child today may have greater access to education consequently youths are
more likely to be aware of the seriousness of their actions, but this questionably does
not infer that all children can distinguish right from wrong or comprehend the
seriousness of his actions. 109
The doctrine represented a universal perception to which it can and has been declared
some children should not be called to answer for their wrongdoing because of their
diminished understanding and capacities of acting. The recent case of R v CM
(2011) 110 supports that the doctrine is considered as a lost tool within the criminal
justice system as a safeguard for the young offender who was likely to re-offend, who
100 Crime and Culpability, (2009), p. 7
101 Supra n. 94
102 Keating. H, ‘Reckless Children?’, Crim L Rev (2007) at 550
103 Ibid note above. 102
104 R v G (2003) UKHL 50; (2004) 1 AC 1034 HL
105 Supra note. 54
106 C (A Minor) v DPP (1995) 1 AC 1, 33 39
107 C (A Minor) v DPP (1995) 1 Cr App R 118
108 Supra note. 53
109 Association of Child Welfare Agencies, Newsletter 2000
110 R v CM (2011) NICC8
61

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The Doctrine of Doli Incapax
also lacked consequential thinking, capacity and control. 111 For Duff he believed it is
perfectly acceptable for society to desire that both the juvenile and adult offender
should be held to answer for their criminal actions because harm has still ensued. 112
Nonetheless, Duff have even questioned whether a child with diminished capacities
(or lack there-of) ought to be the object of the court processes, be held liable and open
to punishment as a result. 113
VII – Conclusion
It has been made clear that 10 years of age has emblematic significance in the
criminal justice system as the starting age for criminal responsibility. This may be
why it has been sympathetically pleasing to an academic to claim that the doctrine or
rather the rebuttable presumption, in fact co-existed, acting as an intermediary for the
low age of criminal responsibility. As Smith proclaimed the criminal law 'holds that a
person is completely irresponsible on the day before his tenth birthday, and fully
responsible as soon as the jelly and ice-cream have been cleared away the following
day'. 114 As a result, it may well be perfectly acceptable to hold onto traditional
childhood concepts of ‘innocence’ and ‘frailty’; because it ought to be thought that a
safeguard should be in place to shelter the child from the criminal law. The doctrine
of doli incapax operated by revealing evidence of a child’s cognitive development,
thus liability if any could be affixed upon the child for the unlawful acts performed.
Then again as Douglas noted, social attitudes towards children have changed since the
uprising of political overtones, tension have mounted children are not considered
innocent or merely naughty. 115 Social retribution and ‘using the criminal law as a
weapon’ has taken focus. 116 To that end criminal responsibility now does not solely
rest upon the child’s development as the doctrine of doli incapax once did: the issue is
one of policy and policy considerations. 117
Those in favour of the return of the doctrine of doli incapax propose that the doctrine
could have been modified to manifest a positive attitude of judicial consistency and
certainty. 118 Perhaps, the presumption and defence could have coexisted amicably.
The White Paper ‘Tackling Crime’ proposed changes to the doctrine: the paper
concluded that there were two options available. Firstly, the presumption could
remain if the rebuttable onus shifted onto the defence, where the defence had to prove
upon the balance of probabilities that the child did not know that his actions were
seriously wrong. 119 This preference was openly favoured in JBH & JH (Minors) v
O’Connell (1981) 120 and by Williams. 121 However the shift of the burden may still
111 Ibid note above. 110
112 Duff (2002) p. 131
113 Ibid note. 112
114 Smith. A.T.H, 'Doli Incapax under Threat' (1994) CLJ 426, at 427
115 Douglas. G, 'The Child's Right to make Mistakes: Criminal Responsibility and the Immature Minor'
in Douglas. G, and Sebba. L, Children's Rights and Traditional Values, Ashgate, (1998), p. 265
116 Keating. H, (2007) at 195
117 Keating. H, (2007) at 189
118 Duff, (2002), p. 131
119 Supra note. 57
120 JBH & JH (Minors) v O’Connell (1981) Crim LR 632

UK Law Students’ Review – 2013 – Volume 1, Issue 2
create practical difficulties because securing a conviction may lead to the child in
every case relying on the defence of doli incapax. 122 Ultimately this is why it was
determined that the doctrine should respectfully be abolished.
If the doctrine is not the answer, Duff has proposed that the courts should reverently
have reservations not about whether the juvenile should be punished, but how the
juvenile is punished. 123 A radical enquiry into this may well shed light on the need to
reform and restore the juvenile’s life and educate them on right and wrong; as
opposed to retributively punishing and casting the child into abyss. Inevitably this
could still provide inconsistent punishments, if the courts were presiding over
Venable and Thompson again, the heinousness of the crime and the retributive public
outrage may well place Williams policy reasons and the spectacle of ‘putting them to
answer’ 124 before the restorative reconciliation vision by Duff.
In this article there has been a spirit of political substance infused right the way
through which may well have provided the incentive to abolish the doctrine of doli
incapax. There have been strong views in favour of the doctrines restoration and
contrasting views contending that the doctrine reverently created an evading facade
for not making youth offenders’ criminally responsible for their actions. Both Fionda
and Keating have concurrently determined that the abolition and the youth justice
system have been shaped by policy incentives. 125 Therefore the future challenge is not
with debating if the youth had or did not have capacity, but how policy can be aptly
shaped in the future. 126 Keating further suggested that if policy is the core incentive
behind any change the question that needs to be answered is ‘why is it inappropriate
to punish a youth?’ 127 This question it could be contended has aptly been applied in R
v CM, notwithstanding the youth’s diminished mental capacity mentioned previously,
the court still found an incentive (whether or not the conviction was politically
motivated is uncertain) the youth was convicted and punished for the crimes
committed. 128 This may reflect policy being shaped too strongly by retributivism,
however it may be perfectly understandable to impose liability to the deserving for the
harm caused regardless of the underlining stimulus. 129 On the other hand policy
should also delve into the value and benefit of punishment when it concerns youth
offenders. Perhaps the reason why Keating has posed the above question is because
retributivism, punishment and political undertones are unavoidable. It is possible the
only way forward is to accept that the future of the youth criminal justice system has
no doli incapax-type defence. In the end it could be summarised that the doctrine of
doli incapax, the shield and presumption, could be a lost cause.
121 Williams. G, (1954) at 498
122 Bandalli. S, (1998) at 115
123 Weijers. I, Duff. R. A, Punishing Juveniles: Principle and Critique, Hart Publishing, 2002, p. 131
124 Supra n. 30
125 Keating, (2007) at 189
126 Ibid note above. 125
127 Ibid n. 125
128 Supra n. 110
129 Supra note. 30
63

BATTLING BOLAM; DOCTORS 1, PATIENTS 0
Dr Kim F Castle, Bangor University
Florence Nightingale’s statement that ‘the very first requirement in a Hospital that it
should do the sick no harm’ 1 would seem to be self-evident. Unfortunately, the fact is
that for many the hospital is not a safe place; not the haven that the sick crave but a
place fraught with potential dangers ranging from the careless and/or negligent
activities of those who staff the ‘hallowed’ halls and also a potential cesspit alive with
the modern day ‘super bugs’. Although medicine is now high powered, complex and
operates in a high pressure environment, it is paramount to appreciate that health care
is reliant on people more often than on machines. It is the ‘human factor’ that
accounts for errors made and they must be addressed.
It is clear that the number of cases finding clinical negligence has increased
dramatically 2 and continues to rise at an alarming rate despite procedures
implemented to ensure that safeguards with regard to clinical practice are built into
the system. Improved risk management and regular audits of a clinician’s work in
conjunction with the requirement of annual validation with regard to an individual’s
clinical work are now mandatory but still the ‘bad apples’ are slipping through the net
as it were. It would appear that the odds are stacked in a physician’s favour at least
partly because the profession can employ the ‘Bolam Test’ to avoid the attachment of
any blame for injuries or death that may have resulted from nonchalant clinical
practice.
Mr Justice McNair enunciated the locus classicus of the test with respect to clinical
negligence in Bolam 3 when in directing the jury he stated that ‘…a doctor is not guilty
of negligence in a medical claim if he has acted in accordance with a practice
accepted as proper by a responsible body of medical men skilled in that particular
art…putting it the other way round, a doctor is not negligent if he is acting in
accordance with such a practice, merely because there is a body of opinion that takes
a contrary view’. 4 Thus the ‘Bolam Test’ entered the annals of medico-legal law and
has for over 50 years allowed medical practitioners to avoid the consequences of their
actions or inactions. 5 Therein lies the rub for it is patently obvious that simply by
concurring with the actions of another the legal repercussions pertaining to remiss
clinical practices are avoided, perhaps wrongly so as all should be held accountable
for injury done to others.
1 Florence Nightingale, Notes on Hospitals (John W Parker and Sons 1859).
2 Sir Liam Donaldson (Chief Medical Officer) ‘Making Amends’. A Report commissioned and
published in 2003 cited an increase of 1200% in reported cases of clinical negligence over the 30 years
preceding publication. This is a consultation paper setting out government proposals for reforming the
approach to clinical negligence in the NHS.
3 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
4 The direction given to the jury by McNair J in Bolam V Friern Hospital management Committee
[1957] 2 All ER 118 at 122, [1957] 1 WLR 583 at 587.
5 Kim Castle ‘Medical negligence: The Pathology of The Responsible Man’; Dissertation produced in
April 2010 at The School of Law, Bangor University, North Wales.

UK Law Students’ Review – 2013 – Volume 1, Issue 2
It could be contended that the Bolam test is no longer tenable in this modern world
given that the realms of cyberspace are ever expanding such that there is now a wealth
of information available to the enquiring mind with the consequence that the mystique
which has characterised the medical profession is becoming more transparent. 6
Consequently, ‘Joe Public’ no longer accepts that a physician’s word is gospel and
irrefutable; they are fallible 7 and should be made to answer for their poor performance,
particularly when the consequences can be devastating for both the afflicted and their
families. All have the right to expect the best from their clinician but the problem for
both parties, the aggrieved and the clinician with regard to allegations of clinical
negligence, is how to prove or disprove the charge as levelled?
When considering the Bolam test it must be remembered that medicine, like law, is in
evolution. The two often run in tandem; developments in medicine can beget changes
in the law as evidenced most dramatically by the major advances that have been made
in the province of human infertility such that the Human Fertilisation and
Embryology Act 8 came onto the statute books in 1990. Thus, regulating the
application of new technology and guarding against unscrupulous, unethical and
immoral practice.
New discoveries are being made every day and, as knowledge expands into
previously uncharted territory, the potential for mishaps is an ever present threat. Sir
Alexander Fleming’s discovery of Penicillin in 1947 heralded a new era in the
treatment of infection but few could have envisaged its import nor the potential for
severe adverse reactions sometimes resulting in death. 9 It must be appreciated that
there are risks associated with all forms of treatment; that which is acceptable must be
balanced against that which is patently not and it is oft a question of ensuring that the
former outweigh the latter. 10 Coupled with this balancing act is the competency or
otherwise of the treating clinician which can quite literally mean the difference
between life, death or severe iatrogenic injury. 11
There is no doubt that the Bolam test is inadequate in this litigious age. It could be
argued that the continued use of Bolam has resulted in a ‘time warp’ with regard to
6 ibid.
7 ibid.
8 The Human Embryology and Fertilisation Act was first entered into the Statute books in 1990 but due
to the rapid advances in medical technology amendments have had to be applied, the most recent in
2008. The principal purpose of the Act is to protect the human embryo and any subsequent
developments relating to an embryo such that those who would seek to exploit the vulnerable are
prevented by law from doing so.
9 Penicillin causes a generalised allergy in 0.7%-10% of cases and acute anaphylaxis, which is
characterised by bronchospasm and sudden death in 0.004-0.015%. It is impossible to predict who will
suffer an adverse reaction until the event occurs. Of course once the allergy is discovered it is
incumbent upon a physician to ensure that the individual never receives the antibiotic again; to
prescribe again would be both negligent and inexcusable. See Nicholas Boon, Nicki R. Colledge, Brian
R. Walker (eds) (Churchill Livingstone Elsevier, 20 th ed, 2006).
10 ibid, page 2.
11 ibid, page 2. Iatrogenic is defined as that which is caused by the actions of physicians. In this modern
age of hospital acquired infections it is of particular relevance but can apply to any procedure or
therapeutic regimen.
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this area of medical law; there is in effect a glaring lacuna in the law which is worthy
of both consideration and modification in the 21 st century. Challenge has been
mounted by several high profile cases, the most notable of which is Bolitho 12 but there
is still much that the law can do to clarify this legal minefield which has the potential
to exacerbate harm sustained by all concerned and is indeed deserving of a
satisfactory form of resolution. The reader must appreciate that the Bolam test has
also been applied to other professions including auctioneers and the designers of
double-glazed windows. 13
I – The Tale of a Snail: To Whom do I Owe a Duty of Care?
A gastropod with a predilection for ginger beer and a penchant for cloudy bottles
slithered out of a bottle and into the annals of legal history when it sought refuge in a
bottle of ginger beer. The snail contributed much to the development of the law of tort
with regard to a manufacturer’s liability and the duty of care owed to any potential
customer if it can be proven that there was no opportunity for tampering of the
product between point of origin and use. The tale of the snail pertains to Donoghue v
Stevenson 14 which concerned the appellant and a friend who purchased a bottle of
ginger beer for the former. The unfortunate woman having already consumed half the
drink discovered a partially decomposed snail in the remainder of the drink which
slipped into her glass thereby altering the law of Tort forever. Unsurprisingly the
appellant developed gastroenteritis. She successfully sued the manufacturer for
negligence
That infamous snail not only promoted the development of the law with regard to the
rights of a consumer but also led to Lord Atkin invoking the ‘neighbour principle’
when he stated that: ‘The rule that you are to love your neighbour becomes in law,
you must not injure your neighbour…Who is my neighbour?...Who,…in law is my
neighbour? The answer seems to be persons who are so closely and directly affected
by my act that I ought reasonably have them in contemplation as being so affected
that when I am directing my mind to the acts or omissions which are called into
question.’ 15 That a relationship exists between healthcare staff and patient is selfevident
such that the duty of care is well established but problems arise when this
duty can be called into question.
The relationship between the major players is paramount in this area of law. It cannot
be ‘acquired’ by another. This means that a physician who prescribes medication
which is then taken by another other than the individual for whom it was meant,
cannot generally be held responsible should an adverse event occur to the person who
consumed it. Likewise, the principle of a duty of care owed is not extended to future
contacts of the single patient as was held in Goodwill v BPAS 16 . Duty of care would
12 Bolitho v City and Hackney Health Authority [1997] 4 All ER 771.
13 Examples of the use of Bolam include Luxmoore-May v Messenger May Baverstock [1990] 1 WLR
1009, auctioneers and Adams v Rhymney Valley DC [2000] Lloyd’s Rep PN 777.
14 [1932]AC 562.
15 Murphy J Street on Torts (12 th Edn., Oxford University Press, New York, 2007) Page 24-25. The
famous dictum as enunciated by Lord Atkin in Donoghue v Stephenson [1932] AC 562.
16 [1996] 2 All ER 161. This case concerned a man, M, who underwent a vasectomy whilst still
married and was subsequently informed that the operation had been successful and that contraception

UK Law Students’ Review – 2013 – Volume 1, Issue 2
extend to only a current partner because although the medical profession are credited
with much that is laudable, they are not clairvoyant. The cases of West Bromwich
Albion v El-Safty 17 and Farraj v King’s Healthcare NHS Trust 18 serve to further
exemplify this point with regard to the law of tort. Lastly, the position of the doctor
who encounters an accident victim must be considered; does a passing doctor owe a
duty of care to the injured? The law recognises that a doctor may act in the best
interests of someone who lacks the capacity to grant consent to treatment 19 but it also
mandates that the doctor must not inflict harm. The latter would indeed incur a charge
of clinical negligence which would be incontestable; however, the provision of
necessary treatment which should have been provided has 20 21 also been
acknowledged. It is of course incumbent upon a general practitioner to treat any of his
patients should he encounter them injured and also upon both ambulance crews and
‘Accident and Emergency’ staff to treat those seeking help. 22
In the context of clinical negligence it is readily apparent that ‘closeness’ exists
between a physician and his patient but when exactly does this relationship arise? At
exactly what point does the transition between ‘stranger’ and ‘patient’ occur? Is it
when a patient registers at a particular surgery or is it when any treatment is initiated?
It is obvious that such a relationship is generated between a patient and medical
institution when advice and help are sought. Recognition of the need for treatment has
already been acknowledged but what if there is a failure to appreciate a said need 23 or
would no longer be required. He later divorced his wife and unfortunately impregnated his new partner.
The plaintiff claimed for earnings lost but the judges dismissed the case as the future sexual partners of
‘M’ could never have been foreseen. It is also interesting to note that 1:2000 male sterilizations fail and
recanalization of the vas deferens can occur, thereby rendering the procedure useless!
17 [2006] EWCA Civ 1299. A doctor was not held liable for the negligent treatment of a footballer
which resulted in financial loss for the club. The physician was not employed by the club; his duty of
care was owed solely to the player.
18 [2006] EWHC 1228(QB). An NHS hospital was held to owe a patient a duty of care after having
commissioned some tests to be performed at a laboratory but subsequently failed to inform the patient
of the results which needed to be acted upon.
19 F v Berkshire HA [1989] 2 All ER 545,567 which concerned the sterilisation of a severely mentally
incapacitated female patient who had started a sexual relationship with a fellow male patient. Given her
mental incapacity she would not cope with any of the means of contraception available so the hospital
sought sterilisation which was allowed on appeal, her mother having contested the action.
20 Powell v Boldaz (1997) 39 BMLR 35. This tragic case concerned the unexpected death of a child
from Addison’s disease which is difficult to diagnose. His parents attempted to claim for psychiatric
injury but it was held that the duty of care was owed to the child not the parents; it did not transfer to
the latter upon receipt of the news of his death.
21 Longmore, Murray et al Oxford Handbook of Clinical Medicine (Oxford University Press, 5 th Edn.,
China, 2001) Page 302. Primary adrenocortical insufficiency, Addison’s disease, is rare, with an
incidence of about 8/1,000,000. It can have a myriad of clinical presentations such that diagnosis is
often only made at autopsy. Accordingly it is a diagnosis that can very easily be overlooked even by
the most experienced of medical practitioners with tragic consequences.
22 Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1QB 428. Three
workmen fell ill after having drunk some tea and presented in the A&E department of the hospital at
which they were working with acute vomiting. The casualty doctor on-call declined to see them,
advising them to see the General Practitioner with whom they were registered. Sadly one died and it
was subsequently discovered that the tea had been laced with arsenic.
23 ibid.
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what if the need had been recognised and there was no remedy? Could the unfortunate
physician who chose not to examine a patient be considered negligent in the course of
his duties when there was naught that he could do to avert inevitable death? 24
Does a physician owe a duty of care to the patient who chooses to ignore advice and
either neglect to take medication as advised or simply refuse to do so? 25 Much has
been made of autonomy in a modern world and the duty owed to a patient but surely it
is incumbent upon the patient to recognise that a professional is also owed a duty
which recognises the physician’s right to practise without compromise to their
professional integrity? Responsibility must be assumed by both parties when a
relationship is established; a contract has in effect been formulated between the
parties involved.
With respect to the duty of care owed by a physician or a health institution, could
there ever be a public policy reason for non-prosecution? It may be that an institution
is at fault rather than a particular individual, for example due to poor staffing levels or
lack of suitable equipment; indeed this was recognised in A(A Child) v The Ministry
of Defence 26 wherein a neonate suffered irreversible brain damage at the hands of a
negligent German obstetrician during childbirth. It was held that the NHS had a duty
to provide a safe and satisfactory service to a patient in the aftermath of the closure of
all the British military hospitals in Germany. 27
II – The Tort Trilogy and the Reasonable Man
‘Duty of care’, ‘breach of that duty’ and ‘causation’ constitute the basic tenets with
regard to the law of tort. All were established by reference to the ‘neighbour principle’
and elaborated upon by Lord Wilberforce in Anns v Merton LBC 28 when he
formulated the concept of proximity with regard to the law of tort when considering
the relationship between the parties concerned; could any acts or omissions be
reasonably expected to result in injury or death? Again the ‘closeness’ that exists
between patient and physician must be emphasised.
24 ibid. There is no cure for arsenic poisoning: once a sufficient amount of the poison has been ingested
death is inevitable.
25 John Griffiths and others, ‘Euthanasia and Law in Europe’ (Hart Publishing 2008) 379-380. Garnier,
Conseil d’Etat, 29 July 1994, Rec p 407. Dr Garnier diagnosed breast cancer in a woman who declined
both chemotherapy and radiotherapy against his advice. Instead she opted to undergo homeopathic
treatment which Garnier discussed with her. Two years later she presented with advanced disease and
the admitting doctor reported Garnier to the French regional disciplinary board who found that the
unfortunate doctor had failed to comply with the professional standards expected of him and he was
suspended from his clinical duties for the prescribing of ‘illusory treatments’, therefore depriving the
patient any hope of cure.
26 [2004] EWCA 641. The unfortunate infant was born to the wife of a British serviceman who was
stationed in Germany at the time. The brain damage sustained at birth resulted in cerebral palsy.
27 See also Bull v Devon AHA [1998] QB 730. The hospital operated on 2 sites resulting in the late
arrival of the obstetric registrar which culminated in the delivery of a severely handicapped twin; his
sibling was healthy. The Court of Appeal found that the hospital had failed to provide an acceptable
level of care.
28 [1978] AC 728. The local authority neglected to check that building work commissioned failed to
comply with plans submitted with such that inadequate foundations resulted in structural problems.

UK Law Students’ Review – 2013 – Volume 1, Issue 2
The test of the ‘reasonable man’ is that which is applied in the determination of
negligence; how would the ‘reasonable man’ have acted in the same circumstances
which resulted in the detrimental act/s? 29 The defendant’s actions are viewed
objectively with regard to the harm that ensued but who is the ‘reasonable man’? He
is the ‘man’ who would not perform a negligent act but would be guided by ‘those
considerations which ordinarily regulate human affairs’. 30 Simplistic perhaps, Greer
LJ 31 proffered a definition when he stated that ‘the person concerned is sometimes
described as ‘the man on the street’ or…’the man on the Clapham Omnibus’, or…’the
man who takes the magazines at home and in the evening pushes the lawnmower in
his shirt sleeves.’ 32 It is for the judge to determine if a defendant has behaved as the
‘reasonable man’. The aim of the law of tort is not only to compensate but also to
deter; subsequent medical practice must be influenced by experience, adverse or
otherwise. 33 Importantly, that which is considered negligent relates to available
knowledge at the time of the alleged incident, the ‘retrospectoscope’ cannot be
employed in the determination of negligence. 34
III – Leading Cases Relating to the Common Law Approach on Medical
Negligence
III(a) – Bolam
The case of Bolam is both interesting and horrifying. The claimant suffered from a
bipolar disorder 35 which it was deemed would be greatly alleviated by electroconvulsive
therapy (ECT). 36 Unfortunately the treatment is not without side-effects.
29 Kim Castle ‘Medical negligence: The Pathology of The Responsible Man’; Dissertation produced in
April 2010 at The school of Law, Bangor University, North Wales. Page 5.
30 Chris Turner and Susan Hodge. Unlocking TORTS (Hodder Education, 2 nd Edn., Malta, 2007)
31 Hall v Brooklands Auto-Racing Club [1933] 1KB 205. The case pertained to the killing of two
spectators and the injuring of several others at a racetrack. The owners were accused of failing to
provide adequate safety precautions but they could not have foreseen the accident.
32 ibid Lord Greer at 224.
33 Kim Castle ‘Medical negligence: The Pathology of The Responsible Man’; Dissertation produced in
April 2010 at The school of Law, Bangor University, North Wales. Page 6.
34 Clare Dyer Doctors, Patients and the Law (Blackwell Scientific publications Ltd, 1992, Bodmin)
Chapter one: ‘Medical Negligence’, page 9. The classic case with regard to this area of law is that of
Roe v Ministry of Health [1954]2 QB 66. An anaesthetic agent was stored in glass ampoules which in
turn were immersed in disinfectant. The ampoules developed cracks so allowing the disinfectant to
seep into the drug, thereby contaminating it and resulted in the permanent paralysis when administered
to the plaintiff at operation. This risk was not known in 1947 when the operation was performed.
Accordingly, the risk could not have been foreseen and therefore the defendant was found not guilty of
negligence. Lord Denning commented further by adding that the court ‘must not look at the 1947
accident with 1954 spectacles’.
35 Nicholas A Boon, Nicki R Colledge, Brian R Walker Davidson’s Principles &Practice of Medicine
(Churchill Livingstone Elsevier Limited, 20 th Edn., India 2006) Page 242. A ‘bipolar disorder’, also
known as Manic Depression is one characterised by periods of alternate depressed and elevated moods.
Unfortunately, it is a relapsing disorder and is associated with an increased lifetime risk of suicide.
36 Electro-convulsive therapy is an archaic form of treatment which has aroused much controversy in
the medical world. Opinion is divided as to its efficacy and the manner in which should be
administered; with or without general anaesthesia, plus or minus muscle relaxants. The treatment
developed in the 1930s and initially was used widely in the 1950s and 1960s but has now been mostly
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In the short term, convulsions can occur; in the long term, memory loss. Powerful,
sustained convulsions can result in fractures, occurring in 1 in 10,000 treatments. The
procedure is therefore not without risk. Accordingly, some clinicians, when obtaining
consent from the patient, will inform them of these possibilities; however, not all are
of the opinion that the patient should be informed of the potential for fracture injuries.
Clinicians were also divided as to whether or not the patient should simply be
restrained or muscle relaxants administered. Some felt that the latter were associated
with the possibility of death and were to be avoided.
Bolam was not informed of the fracture risk at consent and the only form of restraint
applied during ECT was support to the lower jaw. Muscle relaxants were not
administered. Unfortunately he convulsed violently resulting in bilateral upward
trajectory forces applied to both femora culminating in concomitant bilateral fractures
to the acetabulae with attendant severe pain. 37 Medical opinion was divided as to
whether the treatment fell short of those standards that a physician owes to the patient
or did it conform to ‘sound medical practice’? 38 Some would have used muscle
relaxants and perhaps anaesthetic agents whereas others would have only applied
restraints, and yet both methods have been considered recognised forms of adjunct
treatment when administering ECT. To the lay person such differing ‘recognised’
modes of treatment must make the medical profession seem even more
incomprehensible than their language already does. It is a sobering thought that
treatment methods with the potential for such different outcomes can be considered
acceptable.
III(b) – Dissecting Bolam
Given the impact that this case has had on the issue of medical negligence, it is
worthy of analysis. The essential question to be addressed was whether or not a health
professional had breached the duty of care owed to a patient; seemingly
straightforward, given the assumption that such a relationship always exists between a
doctor and/or nurse and their patient. If one accepts this presumption, the next
question to be answered is what series of events or acts of omission led to the mishap?
The first question is easy to answer but what about the second? The premise as
established in Bolam is that, as long as other ‘reasonable, respectable and responsible’
medical men would have acted in such a manner that could have resulted in injury, no
breach in the duty of care owed had occurred. Fundamental to the law of tort is that
the breach must be proven to have caused the injury and yet this would seem at odds
with the tenet established in Bolam that recognised therapies, despite being associated
with acknowledged side effects, are in effect excusable if others would have done the
replaced by both more modern and humane methods, particularly pharmacological and psychological;
the latter are of a talkative nature! It involves the application of electrodes to the skull and passing an
electric current either across the whole brain or only half of the organ. The procedure is thought to
cause the release of neurotransmitters which are thought to be involved in the aetiology of depressive
disorders. It is of dubious efficacy and can be associated with distressing side-effects both in the short
and long term; hence its fall from grace.
37 Put simply, both thigh bones broke free of his pelvis and pierced his abdomen.
38 --Times Law Report, 27 November 1997. Bolitho v City and Hackney Health Authority. ‘ A court
was not bound to hold that a defendant doctor escaped liability for negligent treatment or diagnosis just
he led evidence from a number of medical experts who were genuinely of the opinion that his treatment
or diagnosis accorded with sound medical practice.’

UK Law Students’ Review – 2013 – Volume 1, Issue 2
same. It is to be understood that Bolam did not address the question of causation, only
that of the preferential treatment afforded to the patient.
The court accepted that two conflicting opinions as to treatment regimes could still be
regarded as valid if a responsible body agreed that either was acceptable, but what
defines ‘the responsible body’? The medical profession who were to be judged?
Importantly, it meant that the judges were not permitted to choose between competing,
perhaps diametrically opposed, expert views. In effect the judges, being bound by
‘medical judgements’, had their options limited from the outset. It could be argued
that a decision as to whether or not a doctor was guilty of medical negligence was a
fait accompli even before the case went to court; the decision in court had little to do
with the law and perhaps more to do with society’s perception of those who care for
its health.
III(c) – Treatment options
Medicine is not an exact science and there are often several treatment options
available to clinicians. In Bolam there were two options, both of which had the
potential for injury. The ruling in Bolam meant that even if the least popular and
possibly most injurious was chosen, a medical practitioner could not be deemed
negligent even if a potentially life threatening event occurred. As long as a
‘competent body of medical opinion’ 39 accepts that a practice can be regarded as the
norm, it will be acceptable. This is the main tenet upon which Bolam rests.
It is to be appreciated that although several treatment options may be available to the
clinician, it is incumbent upon him/her to choose the most appropriate and administer
accordingly; to simply disagree with new advances is not sufficient reason to choose
an outmoded regime. Another avenue to be explored is that often, in medicine, it is
the terminally ill who are offered new and perhaps untested treatments. After all, they
have nothing to lose and might be more accepting of adverse events; in effect they are
‘human guinea pigs’.
With regard to the incapacitated, the courts had rigidly applied Bolam, asking if the
administration of a treatment came within its remit. Was it in the best interests of the
patient to receive the treatment and could the treatment be carried out in the NHS? 40
Criticism was levelled at the courts for their universality in the use of the test as the
defining mechanism of choice in later cases establishing that Bolam should be used as
a ‘filtering mechanism’ rather than the sole determinant, 41 thereby enabling the
clinicians to weigh up the advantages and disadvantages of a proposed treatment; an
element of rationality was introduced as opposed to a simple acceptance of one
expert’s views versus another’s.
Experimental therapies and the application of Bolam were considered by Dame
Elizabeth Butler-Sloss in Simms v Simms, A v A (a child) 42 , concerning the tragic case
of two teenagers both severely disabled and bedridden with no discernible quality of
39 Chris Turner, Susan Hodge Unlocking Torts (Hodder Education, 2 nd Edn, Malta, 2007) Page 109.
40 Phil Fennell ‘Medical law’ 19.15.
41 ibid at 19.15.
42 [2002] EWHC 2734 (Fam), [2003] 1 All ER 669.
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life due to a severe degenerative form of variant Creutzfeldt-Jakob disease (vCJD) 43 ,
from which there was no hope of recovery. An experimental treatment had become
available and the question was whether it was in the patients’ best interests to
administer the untested treatment. It was defined as untested, because it had not been
tested on humans. On laboratory animals, however, it had produced good results. It
was felt in applying Bolam in a permissive manner to allow the use of an untried
therapy, both the interests of society as a whole and that of the patients should be
considered; the test should not be allowed to hinder medical developments. Dame
Elizabeth stated: ‘...the medical evidence...consistent with the philosophy that
underpinned the test, it would not in itself have been irresponsible or unethical to give
the treatment to the patients...’ 44 Thus her opinion was that Bolam should not hinder
medical advances but, rather, its use could promote the development of the ‘new’,
particularly if society as a whole could benefit. She further elaborated on this issue
with regard to vCJD in that apparent futility in treatment may in fact be beneficial to
all.
III(d) – The standards applicable
The ruling in Bolam effectively allowed the medical profession to determine the
standard of care and the conditions which decided such. The doctors were ‘policing’
their own profession, akin to the police investigating complaints against serving
officers before the inception of the Independent Police Complaints Commission. 45
Clearly, this was unsatisfactory, yet the test was applied and endorsed by the House of
Lords in Whitehouse v Jordan 46 , Sidaway v Bethlehem Royal Hospital Governors 47 ,
and Maynard v West Midlands Regional Health Authority 48 , although in each case the
Bolam test was applied in a different context. In Whitehouse, the House of Lords
considered its application to treatment; in Sidaway to disclosure of risk and in
Maynard to diagnosis. The multiplicity of application illustrates the extent to which
Bolam was utilised by the courts when considering allegations of medical negligence
and demonstrates the authority that was accorded to the ruling in Bolam. It was a
judgement that coloured generations of cases and impeded the advancement of the
law with regard to clinical negligence.
43 Creutzfeldt-Jakob disease is one of a group of neuro-degenerative disorders characterised by a
rapidly progressive dementia leading to death. The variant form is seen in young people and is
associated with eating contaminated beef. It progresses inexorably to death at a slower rate than the
classic form. There is no cure available.
44 Phil Fennell ‘Medical Law’ All England Annual Review/2003/Medical Law at 19.17
45 Established by the Police Reform Act which came into force in April 2004.
46 [1981] 1 All ER 267. As a result of a traumatic forceps delivery, a baby sustained brain damage. The
obstetrician was sued for medical negligence but he had made a clinical judgement which unfortunately
was flawed, but he had not acted negligently.
47 [1985] AC 871. A patient underwent spinal surgery but was not informed of the 1% risk of paralysis
and permanent damage; unfortunately she sustained both. The doctors involved were found not guilty
of being negligent in their duty to inform of all risks involved.
48 [1985] 1 All ER 635. Two surgeons operated on a woman in order to determine a diagnosis.
Unfortunately the patient sustained permanent damage to her vocal cords which resulted in speech
impairment. Held that the doctors had acted in a reasonable manner.

UK Law Students’ Review – 2013 – Volume 1, Issue 2
Differences in medical opinions generally define the other problem inherent in the
application of the Bolam test. A doctor’s alleged negligence is to be judged by ‘a
competent body of medical opinion’ 49 but in ever-changing spheres of excellence who
can be defined as an expert in any particular field? It may well be that a procedure is
so new that none can be considered ‘experts in the field’. If so, who is competent to
judge the doctor of dubious ability? Consider also that there may be scope for a new
procedure to be performed in a variety of ways with the same objective in mind; a
cholecystectomy 50 can be performed by key-hole surgery or by a classic incision. The
removal of the gall bladder is the achieved aim in both, but the risks associated with
each procedure differ.
Factored into the equation must be the possibility that a ‘so-called expert’ in a new
realm of medicine may have played a part in the development of either a new drug or
procedure and may be very unwilling to concede that perhaps his research
methodology is at fault. Medical researchers have also been known to falsify results 51
in their pursuit of recognition in what can be a highly lucrative field of medicine;
innovation and research with the possibility of entering medicine’s hall of fame.
In addition, there are those in the medical profession who assume the mantle of
‘expert’ despite there being no scientific evidence to back up their supposed superior
knowledge. Several high profile cases recently have highlighted this problem. The
Cleveland case, which occurred in the late 1980’s resulted in 121 young children
being placed in care as the result of the erroneous diagnosis of sexual abuse made on
the basis of very dubious physical evidence determined to be pathognomonic of such
maltreatment. Two paediatricians, Drs Marietta Higgs and Geoffrey Wyatt, had
determined that, when examining the children, reflex anal dilatation proved the
diagnosis of abuse; in fact it is relatively common amongst unabused children as
research has revealed. 52 Their controversial diagnoses resulted in the children being
taken into care, contributing to the emotional trauma they had already experienced as
a result of the examination and the manner in which they were treated by the doctors
who in most cases failed to call the children by their first names or explain what they
were doing. Perhaps most distressing is the manner in which the children were taken
from their homes, sometimes in the middle of the night. 53 A total of 2007 people were
affected by the scandal that dominated the news and media; the doctors continued in
clinical practice and the children are still suffering the long term consequences. Many
describe their treatment at the hands of the so-called medical experts as sexual abuse.
49 Chris Turner, Susan Hodge. Unlocking TORTS (Hodder Education, 2 nd .Edn., Malta, 2007) Page 109.
50 A cholecystectomy involves the removal of the diseased gall bladder. The classic adage is that it is a
complaint common to those of the female sex who are ‘fair, fat and forty’!
51 Reshma Jagsi, Nathan Sheets, Aleksandra Jankovic, Amy R. Motomura, Sudha Amarnath, and Peter
A. Ubel, "Frequency, nature, effects, and correlates of conflicts of interest in published clinical cancer
research" (15 June 2009) Cancer 2783.
52 A Stanton, R Sutherland , ‘Prevalence of reflex anal dilatation in 200 children’ British Medical
Journal vol 298 ,802, 25 March 1998. This study revealed that reflex anal dilatation is not
pathognomonic of sexual abuse.
53 Charles Pragnall ‘The Cleveland Child Sexual Abuse Scandal’.
accessed 08 April 2010.
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Battling Bolam
And many are still suffering the long term effects of such treatment; reminiscent of
Bolam? Yet neither of the doctors has ever been questioned in a criminal investigation.
Considering also the case of Sally Clark 54 , another who suffered tragic consequences
at the hands of the medical profession. The unfortunate woman was convicted of the
murder of her two young sons on the basis of medical evidence submitted to court by
self-proclaimed expert medical witnesses. Her first son died suddenly at the age of 12
weeks in 1996; her second son died at the age of 8 weeks just 2 years later. ‘Sudden
Infant Death Syndrome’ or, colloquially, ‘cot death’ is a well-recognised clinical
entity and thankfully comparatively rare, resulting in the death of about 300 babies
every year. There are several risk factors associated with the syndrome, namely
prematurity, low birth weight and male sex; Harry was premature thereby qualifying
for two of the risk factors.
The medical profession held the view that ‘lightning could not strike twice’ in the
same family and, apparently lacking sufficient evidence to ascertain the causes of
death, decided that the children must have been smothered. Principally the
paediatrician, Professor Meadow, was of the latter opinion; he attributed the chances
of two children succumbing to cot death in the same well-to-do family as
1:73,000,000. The true figure is actually around 1:200 55 but the jury was swayed by
the professor’s apparent authority. It is small comfort that he was subsequently
discredited as his belief in his own expertise destroyed families; units not easily
‘mended’.
As a result of this somewhat flawed medical evidence, Sally Clark was tried for
murder, convicted and jailed. She spent 4 years behind bars before her case came
before the Court of Appeal. A similar case was that of Trupti Patel 56 who was
convicted of the murder of her three young children, but she too was subsequently
acquitted on appeal. A lot of cases involved Professor Meadows whose firmly held
beliefs caused much damage to the families involved.
At appeal it transpired that the pathologist involved in the case had withheld evidence
that one of the Clark boys had an infection 57 which could have contributed to his
54 R v Clark [2003] EWCA.
55 Tom Kelly, ‘Vital evidence not given to jury that convicted Sally Clark’ (17 May 2007) Daily Mail
accessed 08 April 2010.
56 Alison Holt, ‘Patel case raises questions’ 11 June 2003.
accessed 17 April 2010. Trupti
Patel was convicted of the murders of her three children who died at the ages of 3 months; two weeks
and one day, and three weeks and one day old. The first two were classed as cot deaths but the third
death aroused the suspicions of the authorities who subsequently charged Trupti with the murders of all
three. It later transpired that her grandmother had lost five babies, cause unknown. With regard to these
cases of multiple unexplained deaths, there may be a hitherto undiscovered genetic component linked
to an immune deficiency.
57 8 week old Harry was infected with Staphylococcus aureus. Although a ubiquitous organism, it can
prove fatal and perhaps contributed to Harry’s death. It is of course well known to the public as
MRSA; Methicillin Resistant Staphylococcus Aureus and in modern times has contributed greatly to
hospital acquired infection and subsequent mortality.

UK Law Students’ Review – 2013 – Volume 1, Issue 2
death. He had also just received the controversial combined vaccination 58 routinely
given at two months of age. The pathologist was also found to have acted beyond his
competence. His behaviour, coupled with that of the ‘eminent’ paediatrician, resulted
in a gross miscarriage of justice. The doctors’ arrogance beggars belief and, although
the paediatrician was struck off by the General Medical Council, he was reinstated as
the judge felt that he had acted in ‘good faith’. This latter point illustrates the problem
that the judiciary face in judging the medical profession and their expertise. This will
be expanded upon later.
There are inherent problems in the concept of the ‘expert witness’; not only can their
expertise be questionable but time must also be factored into a situation. After the
misadventure which is to be debated in court, the passage of time may well have
determined the true risks associated with a new procedure; how then does ‘the expert’
reconcile events of the past with new knowledge unavailable at the time an incident
occurred? Lord Denning’s famous 1947/1954 spectacles; a case must be determined
in line with the practice of the time and not with knowledge subsequently acquired. 59
In practice, this can be difficult to do.
III(e) – Consent
The Bolam test has generated many questions, not least that of informed consent.
How much information should be imparted to a patient and can the patient fully
comprehend that information? The issue of consent is difficult given that the majority
of people will only retain a fraction of information imparted to them by clinicians and
it is a problematic area of law. It could also be argued that the communication of too
much information, by detailing every conceivable risk will do more harm than good.
If the risks are negligible, it has been argued that ‘On the one hand you alarm
unnecessarily, and on the other hand, you may put him in a position where he feels
that he should take the decision, albeit the doctor is obviously much better qualified to
weigh up the advantages and the desirability of the proposed operation as against the
risks’. 60 Ultimately, it is for the clinician to decide what is appropriate to share with
the patient; it is not for medicine to further burden the ailing. Lord Diplock elaborated
on this point ‘...To decide what risks the existence of which a patient should be
voluntarily warned...is as much an exercise of professional skill and judgement as any
other part of the doctor’s comprehensive duty of care’. 61
The venturing of Bolam into the area of consent in effect dismissed ‘informed consent’
from application in English law. This was much debated in Sidaway by Lord Bridge
who considered the ‘different criterion as to the measure of the medical man’s duty of
care to his patient when giving advice with respect to a proposed course of
treatment’. 62 He also recognised that the competent adult, ‘of sound mind’, is entitled
58 The combined vaccination consists of Diphtheria, Tetanus and Bordetella pertussis (whooping
cough). It is the latter component that has caused much controversy and has been associated with brain
damage and death. It has also been implicated in the causation of autism although the evidence to
support the latter is the subject of much debate.
59 Roe v Minister of Health [1954] 2 All ER 131.
60 O’Malley v Board of Governors of the National Hospital for Nervous Diseases [1975] 1 BMJ 635.
61 Chris Turner, Susan Hodge Unlocking Torts (Hodder Education, 2 nd Edn, Malta, 2007) Page 111.
62 [1985] AC 871 at 898.
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to make a decision as to his fate, particularly when undergoing general anaesthesia;
‘this entitlement is the foundation of the doctrine of informed consent’. 63 His basic
premise was that although a clinician has an obligation to impart information
regarding risks attributable to a procedure, it is for the clinician to temper that
information in the interests of the patient. He warned against the dangers of being
‘alarmist’ by stating that ‘...once the doctor has decided what treatment is, on balance
of advantages and disadvantages in the patient’s best interests, he should not alarm
the patient by volunteering a warning of any risk involved, however grave and
substantial, unless specifically asked by the patient’. 64 He felt that it was the
clinician’s duty to advise appropriately and answer those queries about specific risks
when forwarded.
Truly informed consent can only be given if each and every risk potentially applicable
to a treatment regime is detailed. Obviously this is nearly impossible to achieve and
the requirement to do so has no basis in English law. There are risks inherent in all
procedures; this is accepted and all is done to minimize them.
The current law pertaining to the issue of consent was established in Chatterson v
Gerson; 65 consent is real if a patient is informed in broad terms of the risks involved
in a procedure and has given his consent. Most clinicians will not specify every risk
attributed to a therapeutic regime but will elucidate those that most commonly occur.
There will always be patients who desire more information, who might even request
research materials. It is to be conceded that the likelihood of some events occurring is
remote, as in Bolam. 66 Consider the situation in Bolam, though; he was mentally ill
and likely unable to comprehend the enormity of the procedure. Arguably, consent
should have been obtained from a competent adult assuming responsibility for Bolam,
as one would in the case of a child requiring treatment.
Pearce v United Bristol Healthcare NHS Trust 67 elucidated the point pertaining to the
informing of a patient of significant risks. In Sidaway Lord Bridge considered the
question of risk and concluded that a risk of 10% could be regarded as significant.
However, any risk is significant to the individual who sustains that risk and it is
impossible to quantify that which is relevant to that individual.
Pearce elaborated on this point as it was considered that a risk of 0.1-0.2% 68 relating
to the chance of having a stillborn child when a mother is overdue is negligible, but
surely not to the bereaved mother who had to deliver a dead child? The consultant in
this case had withheld information when questioned by the expectant mother in
63 ibid.
64 ibid.
65 [1981] 1 QB 432 at 443. Bristow J enunciated this principle. A patient sustained damage to her ilioinguinal
nerve during herniorraphy which resulted in severe, intractable pain. Subsequently a specialist
attempted to ablate the pain by instilling a nerve block which cured the pain but resulted in paraesthesia
to the limb. Held that although the patient had not been informed of this potential consequence of such
a procedure, the clinician was not negligent in the application of his duty.
66 See earlier text, the risk of convulsions was estimated at 1:10,000.
67 [1999] 48 BMLR 118.
68 ibid at 125.

UK Law Students’ Review – 2013 – Volume 1, Issue 2
deference to her emotional state. The judge applied Bolam but conceded that they
were not bound to follow the test. He stipulated that the advice tendered should be
rational with regard to the situation; did it address the concerns of the patient?
Subsequently Sidaway was applied and the plaintiff did not succeed. So, it is
incumbent upon a clinician to gauge that which his patient is capable of fully
comprehending in any given clinical situation because there is no point in simply
blinding someone with science.
III(f) – Bolitho v City & Hackney Health Authority
Bolam greatly influenced the outcome of medical negligence cases throughout the
1980’s and allowed the medical profession to in effect adjudge itself. It set standards
determining the care that ought to be afforded to a patient and also determined when
the duty of care was breached; a wholly unsatisfactory state of affairs. Bolam also
entrenched the concept of the validity of dual therapies being acceptable if endorsed
by a body of ‘reasonable, respectable and responsible’ medical men, who were
defined by the profession itself, quite possibly to the detriment of patient care.
Bolitho v City & Hackney Health Authority 69 heralded a change in the attitude of the
courts towards the continued application of the Bolam test in that they were no longer
willing to base their judgements on the medical profession’s assessment of their own.
It was time to allow their own opinions and judgements to hold sway in the courts,
and be less reliant upon often self-professed ‘expert witnesses’. Importantly, Bolitho
allowed judges to distinguish between conflicting ‘expert’ opinions and decide which
made more sense, notwithstanding the clinician’s perspective.
The case was tragic as it concerned the potentially avoidable death of a 2 year old boy,
Patrick Bolitho. He had a history of croup 70 which is characterised by paroxysms of
coughing, laryngeal stridor 71 and breathlessness which can lead to asphyxia and
sudden death. Given the clinical features it is of importance to maintain the airway but
intubation is associated with laryngeal spasm and may precipitate both respiratory and
cardiac arrest and is therefore not without severe risk. Despite the risk attached to
intubation it is accepted medical practice that maintenance of an airway at least
ensures that respiratory failure does not lead to cardiac arrest.
The child was admitted in January 1984 with an upper respiratory tract infection but
he was not treated with any great urgency, despite his clinical history. Given that he
had already suffered episodes of respiratory difficulty he should have been treated
urgently. On admission two doctors were assigned to his care, Drs Horn and Rodger,
although neither appears to have treated his deteriorating condition with any degree of
gravity. The next day his condition markedly deteriorated. He developed severe
breathing difficulties leading to respiratory arrest, cardiac failure and resultant severe
brain damage from which he never recovered. One of the doctors attended the first
episode of respiratory crisis but neither attended the second which ultimately led to
69 [1997] All ER 771.
70 Croup, acute laryngo-tracheobronchitis, is an upper respiratory tract infection, usually viral in
aetiology.
71 On inspiration, stridor is characterised by a high pitched breath sound. It is usually caused by
laryngeal obstruction.
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the child’s demise. An experienced nurse alerted the more senior of the two doctors,
Dr Horn, when the child began to deteriorate markedly but she declined to attend
despite the alarming change in the child’s clinical condition of which she was
informed, although in her defence she claimed that the batteries in her bleep were flat.
But a doctor in a position of responsibility has a duty to ensure that at all times
contact can be made by those dependent upon them.
III(g) – The Bolitho judgement
The main issue when the case came before the House of Lords was the question as to
the alleged negligence on the part of Dr Horn who maintained that she would not have
intubated even if she had attended the child during the final episode; did her care
equate to that which would have been rendered by a doctor of similar skill and
competency? The law of tort stipulates that those undertaking the acquisition of
specialist skills are required to achieve the standard of the reasonable doctor of the
same rank 72 ; had Doctor Horn in fact done so or was it yet another case of the medical
profession applying their own standards?
The health authority conceded that Doctor Horn had breached her duty of care;
negligence was therefore established but did her failure to attend the child result in the
final catastrophic event? The question as to causation had to be addressed. Would
intubation have saved the child, given that the gold standard of care pertaining to the
condition expressly endorses the maintenance of the airway as paramount in the
avoidance of the complications experienced by Bolitho? Dr Horn’s contention was
that even if she had attended the child, she would not have intubated. Eight expert
witnesses could not agree as to the proper course of treatment that should have been
administered. Their views very much depended on the clinical condition of the child;
some evidence indicated either that the child was quite well apart from the two acute
episodes whereas opposing evidence indicated a progressive decline in respiratory
function leading inexorably to the final event. The indications for intubation differed
according to the physical condition of the child; five would have intubated, whereas
three would not have done so.
Interestingly, the judge went with those who would not have intubated, thereby
absolving Dr Horn, endorsing her care and finding that it did indeed measure up to
those standards espoused by a doctor of similar skills and ability. One of the reasons
that the judge was swayed by the arguments against intubation was the question of the
discomfort that would be experienced by the child, who between episodes had
appeared quite well. A counter argument, however, is that the child could have been
sedated and therefore may have survived; as the old adage goes, ‘sometimes you have
to be cruel to be kind’.
Wilsher v Essex Area Health Authority 73 was considered and yet the doctor in this
case was found to have fallen short of the standards expected of a doctor of the same
level of training; a harsh judgement given the facts of the case which pertained to the
72 Wilsher v Essex Area Health Authority (1986) 3 All ER 801.
73 [1988] AC 1075.

UK Law Students’ Review – 2013 – Volume 1, Issue 2
oxygen therapy administered to a premature infant, resulting in blindness. 74 The
difference in judgements reached reveals an apparent dichotomy of opinion in the
skills expected of junior doctors.
Bolitho paved the way for development in the law related to medical negligence by no
longer endorsing a medical viewpoint simply because a medical expert regarded a
course of action, no matter how illogical, as an option, but still Lord Browne-
Wilkinson held that ‘it will very seldom be right for a judge to reach the conclusion
that views genuinely held by a competent medical expert are unreasonable. The
assessment of medical risks and benefits is a matter of clinical judgement which a
judge would not normally be able to make without expert evidence.’ 75 He felt that a
judge’s position was to decide when a course of action could not be logically
supported by the viewpoint of an expert and would, therefore, not provide a bulwark
against a charge of alleged medical negligence.
IV – Bolitho vs Bolam
Bolam traversed the world influencing the standard of care expected of all
professionals but notably that expected of doctors. Increasingly, though, its use and
validity were questioned, leading to Bolitho which established that the judiciary could
question the actions of clinicians that were patently illogical despite assertions by
colleagues to the contrary. Bolitho did much to challenge Bolam. Importantly, it
allowed the courts to challenge so-called expert witnesses and the apparent absurdity
of some of the clinical decisions. For the first time the House of Lords criticised the
medical profession which post-Bolam could, in some cases, seem to have got away
‘with murder’. The House also rejected the notion that a doctor should escape liability
for their actions simply because their colleagues would have acted in a like manner. In
allowing a colleague to state that he would have acted in a similar manner given a
comparable clinical scenario, a substantial benefit was awarded to those facing an
allegation of clinical negligence and assured failure of the claim against them in most
instances.
The whole premise of Bolam depended upon the different treatment options available
to clinicians and the concept that a ‘reasonable man’ would have acted in the same
way, but Bolitho challenged this by allowing the court to choose between two
opinions proffered. Significantly Lord Browne-Wilkinson challenged the principle
enunciated in Bolam of the ‘responsible, reasonable and respectable’ medical man and
stated that the use of this terminology should ‘show that the court has to be satisfied
that the exponents of the body of opinion relied on can demonstrate that such opinion
has a logical basis’. 76 He felt that before accepting such opinions, he must be satisfied
that the clinical position was one of strength founded on good medicine. It was simply
not good enough for a court to accept the views of one body of experts as opposed to
74 This was an extremely harsh judgement as premature babies are prone to multiple ophthalmic
problems including that of inadequate development of the eye. It is true that the administration of
100% oxygen does result in retrolental fibrodysplasia which is a cause of blindness in the premature,
but in this case other factors could have contributed to the child’s blindness.
75 [1997] 4 All ER 771 at 780.
76 [1997] 4 All ER 771 at 779.
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those of another without question; after all it is for the court to decide the standards of
care expected, not the profession itself.
The acceptance not to intubate in Bolitho, despite evidence to suggest that
maintenance of the airway would have obviated the clinical problems resulting in the
death of the child, is absurd and indeed was commented upon; ‘...the views of the
defendant’s experts simply were not logical or sensible’. 77 He further commented on
the fact that despite the child having experienced respiratory difficulty on two
occasions prior to the terminal event, that ‘it was unreasonable and illogical not to
anticipate the recurrence of a life threatening event and take the step which it was
acknowledged would probably have saved Patrick from harm?’ 78
This was like a breath of fresh air through legal corridors. A judge had questioned the
illogicality of doctors electing not to act and accepting such inaction despite evidence
that a course of treatment possessed merit. Indeed Lord Browne-Wilkinson
commented in Bolitho that ‘ if, in a rare case, it can be demonstrated that the
professional opinion is not capable of withstanding logical analysis, the judge is
entitled to hold that the body of opinion is not reasonable or responsible’. 79
That rare case to which Lord Browne-Wilkinson referred was that of Hucks v Cole, 80
which predated Bolitho. A doctor withheld penicillin from a patient with sepsis; a
body of expert witnesses concurred with this view but despite their evidence the Court
of Appeal held the defendant was negligent. Lord Sachs said: ‘When the evidence
shows that a lacuna in professional practice exists by which risks of grave danger are
knowingly taken then, however small the risks, the court must anxiously examine the
lacuna, particularly if the risks can be easily and inexpensively avoided...If the court
finds, on an analysis...of reasons given for not taking those precautions that, in the
light of current professional knowledge, there is no ...basis for the lacuna,...it is ...not
reasonable that those risks should have been taken, its function is to state the fact and
where necessary to state that it constitutes negligence’.
Following Bolitho, judges felt able to question medical evidence in situations where
they doubted its relevance. The opinions of all expert witnesses must be defensible,
given honestly and sincerely held. These views must be ‘capable of withstanding
logical analysis’ 81 . The Court of Appeal, for example, disallowed medical evidence in
Mariott v West Midlands AHA and Others 82 . A General Practitioner (GP) failed to
recognise the seriousness of a head injury incurred by a man who had fallen down the
stairs rendering him unconscious. Subsequently he became increasingly lethargic,
suffered headaches and lost his appetite. His GP attended him but did not think that
his condition merited a referral to hospital. He lapsed into a coma and required
77 [1997] All ER 771 at 778. Lord Browne-Wilkinson.
78 ibid at 779.
79 Bolitho v Hackney Health Authority 39 BMLR 1.
80 (1968)(1993) 4 Med LR 393.
81 Emily Jackson ‘Medical Law Text , Cases, and Materials’ (Oxford University Press, 2 nd ed, 2010)
118.
82 [1999] Lloyd’s Rep Med 23.

UK Law Students’ Review – 2013 – Volume 1, Issue 2
surgery to remove a haematoma which left him with a permanent disability. The
expert witnesses disagreed as to what course of action the GP should have adopted;
one agreed with the GP’s opinion but the other disagreed and maintained that he
should have been referred to hospital. In the light of developments, the evidence
offered by the witness could not be logically supported. Accordingly, the General
Practitioner was indeed found to be negligent in his failure to attend to the patient,
even though the injury he sustained when he fell downstairs was a rare consequence
of such an event. The man was ill and was denied the necessary medical treatment; a
simple statement of fact.
The importance of Bolitho is that a clinician’s actions were no longer considered
above the law and perhaps more claimants have had cases settled in their favour, but
it remains difficult to prove that a clinician did act negligently when confronted by the
testimony of reasonable, responsible, respected experts, for the medical profession
constitutes a powerful group of learned individuals. Notwithstanding this, it was to be
expected that it would become more difficult for doctors to escape the consequences
of their actions and make it harder for the profession to shield its own for none should
be above the law, transgression is deserving of legal censure which should bode well
for those ‘injured’ by the medical profession but is apparent that it is still very
difficult to prove that a clinician’s conduct is negligent if so endorsed by another. 83
The problem is that it remains very difficult for a judge to conclude that views
genuinely held by a competent medical practitioner are unreasonable and therein lies
the problem with regard to Wisniewski, as indeed Lord Browne-Wilkinson so
commented. 84 However, in rare cases the claimant’s action has succeeded.
V – Testing Bolam
In the common law jurisdictions, the three basic tenets pertaining to medical
negligence remain applicable: the duty of care, breach of that duty and causation. It is
the last that has proven the most difficult to establish as evidenced in Bolitho amongst
others. Perhaps it is also worth considering the ‘but for’ premise; a defendant can only
be found negligent if the claimant would not have sustained the injury ‘but for’ the
defendant’s actions or inactions. Could this have been applied in Bolitho? ‘But for’
the inaction of the doctors would he have lived?
Different jurisdictions have dealt with the issue of consent differently. In England,
Bolam has been applied and allowed the doctrine of informed consent to be partially
negated; Sidaway established quite firmly the application of Bolam to consent. Lord
Templeman was firmly of the opinion that it was not in the patient’s best interests to
know everything; indeed ‘a little knowledge is a dangerous thing’ but conversely it is
not for the clinician to decide for the patient unless the patient cannot do so for
83 See Wisniewski v Central Manchester Health Authority [1998] Lloyd’s Rep Med 223 CA. This sad
case concerned a young boy who suffered from cerebral palsy as a result of having the umbilical cord
knotted around his neck during a delivery which went sadly wrong. The experts could not decide on the
manner in which the labour should have been managed.
84 Ibid. Lord Browne-Wilkinson at p.1160A-E: ‘I emphasise that in my view it will very seldom be
right for a judge to reach the conclusion that views genuinely held by a competent medical expert are
unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a
judge would not normally be able to make without expert evidence’.
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himself. The courts in Singapore 85 have followed the English with regard to the
application of Bolam to causation and a duty to warn patients of possible risks with
several high profile cases. 86
The situation is very different in the United States of America and Canada. A
patient’s consent is vitiated if full information related to a procedure is not given in
some American states 87 but it is difficult to understand just how such comprehensive
information could be imparted. In both Canada and certain American jurisdictions,
knowledge on which the patient has relied and based their decision to consent, may
oust Bolam. It is therefore proposed that the test of informed consent should be an
objective one based on the ruling in Canterbury v Spence 88 ; enough should be
disclosed about a procedure to enable a patient to make an educated decision. 89
Robinson J said that ‘respect for the patient’s right of self-determination on particular
therapy demands a standard set by law for physicians rather than one which
physicians may or may not impose upon themselves’. 90 The principle with regard to
consent is important because it establishes the right of the competent patient not only
to consent to treatment but also the right to refuse treatment.
The Australian courts do not apply the Bolam test but rather consider each case on its
merits; the nature of the treatment, the desire of the patient for information, the
temperament and health of the patient and the general circumstances. 91 The
Australians consider it the duty of the physician to warn of the ‘material risks’, i.e.
those to which a reasonable person could attach significance. 92 But who
defines ’material’? The Australian position is exemplified in Rogers v Whittaker. 93
85 The Singapore courts consider all the elements pertinent to the application of the Bolam Test; the
duty of care, breech of duty, and causation. Consider Lily Pai v Henry Yeo. The claimant became blind
in one eye when the defendant was found negligent in failing to refer her to a specialist with respect to
a clinical suspicion that the eye was developing serious clinical problem.
86 See Denis Mathew Harte v Dr Tan Hun Hoe& Anor (Unreported) and Gunapathy Muniandy v Dr
James Khoo and two others. The former case involved a patient who sustained severe bruising to both
testes but his treating physician declined to examine him when requested to do so and the latter the
failure of a clinician to diagnose a malignant brain tumour.
87 Scholoendorf v Society of New York Hospital 211 NY 125 (1914) ‘Every human being of adult years
and sound mind has a right to determine what shall be done with his own body and surgeon who
performs an operation without his his patient’s consent commits an assault for which he is liable in
damages’.
88 Richard Kidner Casebook on Torts (10 th edn, Oxford University Press 2008) Page 47. 464 f.2d 772.
Ruling in the District of Columbia Circuit Court of Appeals.
89 Ibid page 47.
90 Ibid page 47. So spake Robinson J at p.748.
91 K Shanmugam ‘Testing the Bolam Test: Consequences of Recent Developments’ Singapore Med J
2002 Vol 43(1)accessed 22 September 2009.
92 ibid.
93 (1992) 175 CLR 479. This was an unfortunate case which resulted in blindness for the claimant who
was not informed of the very small risk, 1:14000, which could result in the loss of sight after a surgical
procedure. The claimant had been almost totally blind in her right eye following a childhood accident
and the surgeon informed her that not only would surgery improve appearance it would also improve

UK Law Students’ Review – 2013 – Volume 1, Issue 2
The issue of consent is not a simple one and calls into question the very nature of the
doctor/patient relationship. A doctor cannot be expected to educate a patient to
medical degree level at consultation and it can be difficult to gauge that to which a
patient will attach import. Simply applying Bolam to the question of consent may in
fact be just that; too simple. Considering the judgement in Reibl v Hughes, ‘To allow
expert medical evidence to determine what risks are material and ...should be
disclosed and...what ...are not material is to hand over to the medical profession the
entire question of the scope of the duty of disclosure...under consideration ...is the
patient’s right to know what risks are involved...’ 94 Ultimately it is for the patient to
make the final decision with regard to their own health.
VI – Auxiliary Influences
VI(a) – The Development of the Art of Medicine 95
The problem with the practice of medicine is that of an ever-increasing knowledge
base, with new treatments and procedures being developed and administered almost
daily. Such is the way of a rapidly developing, innovative, technological world that
characterises modern society. The public are well aware of significant advances in
medicine, courtesy of the media and the internet and expect such to be administered
accordingly, should the need arise. There are few today who do not research their
complaint either prior to seeing their general medical practitioner or, more usually,
before seeing the specialist to whom they have been referred. It is also to be noted,
unfortunately, that although there is a wealth of good, accurate information available
on the various web sites that have proliferated in recent years, there is also some
misleading and inaccurate information accessible, which can make the clinician’s
discussion about a treatment regime something of a trial in itself.
VI(b) – The National Institute for Clinical Excellence
The main aim of the National Institute for Clinical Excellence (NICE), established in
1999 under s.11 of The National Health Service Act 1977 96 was to ensure and
facilitate clinical excellence. It has a remit to evaluate which treatments and drugs
should be available on the National Health Service (NHS) in England and Wales and
has authority to rationalize the treatments available, thereby ensuring value for money.
Critics argue that it is part of a health rationing exercise but it is also tasked with
formulating clinical guidelines pertinent to the major issues in medicine today, one of
which is clinical negligence, which is unfortunately very much on the increase within
the United Kingdom and the source of both concern and controversy.
sight. Unfortunately she developed sympathetic opthalmia, an inflammatory condition that can affect
the healthy eye post trauma or surgery. It is rare with an occurrence of 1:14,000.
94 Richard Kidner Casebook on Torts (10 th edn, Oxford University Press 2008) Page 48. 114 DLR (3d)
1 at 13. The judgement of the Supreme court of Canada, given by Laskin CJC.
95 Kim Castle ‘Medical negligence: The Pathology of The Responsible Man’; Dissertation produced in
April 2010 at The school of Law, Bangor University, North Wales Page 7.
96 This Act was subsequently modified in 1999 when a provision was made for the problem of clinical
negligence.
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With regard to clinical negligence allegedly perpetuated by any member of a
healthcare team but principally by the clinician, the pertinent question relates to the
standard of care expected of that individual as compared to responsible medical
practice. The law in England has very much depended on the expert testimony
provided by other members of the profession skilled within the same discipline and
guidelines have been very much side-lined, as it were. But times are changing and it is
to be anticipated that the latter will play an ever increasing role in tort law relevant to
medical negligence. It is hoped that they will provide the basis of the standards of
care expected within the NHS, and therefore assist the courts in their task when
dealing with allegations of medical negligence.
VI(c) – Guidelines
The formulation of clinical guidelines is a lengthy process, involving more than one
clinical agency. An issue has to be identified, addressed and researched before the
information collated can metamorphose into workable guidelines. Once completed
and put into practice, they require both annual review and regular updates; after all,
medicine is not a static science.
The guidelines thus formulated are intended to provide a framework ensuring both
good clinical practice and management strategy. By their very definition, that of being
both research and clinically derived, it is obvious that there will inevitably be a bias
towards the means of their evolution. If a research project involves only a particular
part of a clinical population, as in those suffering with cancer, then the clinical
guidelines will be inevitably biased in their favour. Also to be factored into the
equation is that of individual susceptibility or indeed a racial one.
Recent times have seen a proliferation of guidelines with varying degrees of usage,
which is disappointing given that they are designed to improve working practice.
Perhaps the answer to poor uptake lies in the manner of their evolution and the failure
to address all pertinent issues? Perhaps those drafting the guidelines should consider
their potential in the legal arena?
VI(d) – Guidelines and English law
As a consequence of the importance attached to the gold standard of care as specified
in Bolam and later modified by Bolitho, clinical guidelines have tended to get
relegated to a secondary position with the judiciary attaching more weight to the
spoken word. This was evidenced by Stuart Smith LJ when he spoke about the
controversial pertussis 97 vaccine which has been linked to autism, although the
evidence both for and against is the subject of much controversy in the medical world.
The judge preferred the spoken word as opposed to publications by learned bodies, 98
which is entirely consistent with a person’s desire for their day in court to speak their
piece.
97 Bordetella pertussis is a bacterium which is the causative agent of whooping cough.
98 Ash Samanta, Jo Samanta and Michael Gunn ‘Legal considerations of clinical guidelines: will NICE
make a difference?’ J R Soc Med. 2003 March; 96(3).

UK Law Students’ Review – 2013 – Volume 1, Issue 2
There is evidence to suggest that there is a move towards the acceptance of guidelines
as was evidenced in Bland, 99 perhaps one of the most high profile cases in recent
times to invoke the use of guidelines, in this case those formulated by the Medical
Ethics Committee of the British Medical Association (BMA). Lord Goff commented
‘if a doctor...acts in accordance with...medical practice now being evolved by the
medical ethics committee of the BMA, he will be acting with the benefit of guidance
from a responsible...competent body of...professional opinion, ...required by the
Bolam test’. 100
In invoking Bolam he considered the duty of care owed to a patient unable to
communicate with his carers who still owed him a duty to act in his best interests. He
referred to cases in other jurisdictions, namely America and New Zealand, with
reference to re Quinlan 101 and Superintendent of Belchertown State School v
Saikewicz 102 in the former and Auckland Area Health Board v Attorney General 103 in
the latter, which concerned a severe case of Guillain-Barre syndrome 104 resulting in a
persistent vegetative state. 105 In all three jurisdictions, the dignity and privacy that
ought to be accorded to all patients, whatever their clinical status, was emphasised
and the concept of the ‘substituted judgement test’ was invoked; what would the
patient have wanted if he could communicate?
Despite this very public use of guidelines the future is uncertain; will they in effect
‘hamstring’ the medical profession preventing innovation and compromise in the
clinical setting? Would a departure from them lead to litigation even if such was done
in the best interests of a patient? There is a practice in the UK of clinicians being able
to prescribe ‘off licence’, i.e. disregarding the clinical indications for a drug and, as it
were, go ‘off-piste’ in certain situations, having explained such to the patient and
obtained written consent. Will this practice now be ‘outlawed’? Only time will tell as
to how the law and guidelines will interact in the future. Perhaps this complex
relationship is in an embryonic stage?
VI(e) – Committees and Legislation
Despite the best efforts of government to address the problem of medical negligence
by the introduction of measures designed to curtail malpractice and encourage
uniformity of care standards throughout the NHS, it remains a thorny problem. It has
been estimated that negligence claims, which are rising annually, will cost the NHS
99 [1993] 4 Medical Law Review 39.
100 Ibid at 872.
101 Ibid at 873. (1976) 355 A.2d 647
102 Ibid at 873. 370 N.E.2d 417
103 Ibid at 873. [1993] 1 N.Z.L. 235
104 Guillain-Barre syndrome is an ascending polyneuritis which can result in total paralysis
necessitating respiratory support. It classically is a sequel to a viral infection and can be of varying
severity. Recovery is time dependent and can be total but it can also result in death.
105 A persistent vegetative state is one in which an individual is totally unaware of their environment
and cannot make any voluntary or purposeful movements. The important clinical feature is the
complete lack of voluntary movement and they retain reflexes, but are doubly incontinent. It is usually
regarded as a non-recoverable condition.
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Battling Bolam
£15.7bn a year. 106 One shudders to contemplate just how much NICE cost to set up
and how much its legal wrangling in court have cost to date. It was envisaged that
conformity would lead to improved standards of care and yet the NHS is still beset by
problems. The Health Act 1999 s.19 led to the establishment of the Commission for
Health Improvement (CHI), which has overall responsibility for the quality control
within the NHS and a remit to oversee and inspect clinical governance at a local level.
Clinical governance 107 was introduced to ensure consistent, high standards of care
throughout the NHS and to promote continued medical education. The latter is of
particular importance in the rapidly evolving world of medicine. Clinicians are
expected to continue learning throughout their careers and it is incumbent upon their
seniors to ensure this and audit their clinical work.
Yet more legislation was enacted with the introduction of the NHS Reform and
Health Care Professions Act 2002, aimed at further regulation of the medical
profession to ensure quality and accountability; it also has a further remit to audit.
The medical profession has attempted to curb the rising tide of clinical negligence
complaints with the introduction of the licence to practise and revalidation. Both
procedures are designed to ensure that a clinician is up to date with medical and
therapeutic developments and fit to practise. The licence to practise was introduced in
November 2009 and will require annual renewal. It is to be coupled with revalidation
which is the process by which a doctor will demonstrate his capability to practise.
Patients will be encouraged to provide feedback about the care they have received;
but what if either should bear a grudge against a particular doctor?
VII – Where to now? – Conclusion and Suggestions
In spite of all the money and brain-storming that has gone into attempting to solve the
problem of clinical negligence, it remains an ever-growing phenomenon. Perhaps it is
time to consider the root causes instead of attempting to tackle the end result, that of
the negligent doctor. It is my premise that medical education must be both improved
and standardised, not only in the UK but also for those doctors who train overseas,
particularly those from the third world. The issue of social engineering must also be
considered in the context of medical education; we are not all equal and it is unlikely
that those who do not shine at school are going to be able to cope with medicine. It is
to be remembered that ‘All men are equal: but some are more so than others’. 108
Not only must education be scrutinized, but attempts must be made to improve
communication by ensuring an agreed level of linguistic skills. The latter must not
only apply to clinicians but to all staff employed in the NHS. Recent articles in the
106 M Wardrop, ‘NHS facing £15.7bn for rising number of clinical negligence claim.’ (7 February
2012) The Telegraph
accessed 8 February 2012. However, perhaps the
rising costs are not only being fuelled by clinical practice itself but also by the growth of legal services
dedicated to seeking damages.
107 Nigel Starey ‘What is clinical governance?’ Volume 1, number 2. May 2001 accessed 18 April 2010.
108 Alfred Walter Barrett (1869- 19??) ‘Cheerful Craft’ 1913. Most sources quote his date of death as
1920, but he was tried in court in 1921, after which his whereabouts cannot be verified.

UK Law Students’ Review – 2013 – Volume 1, Issue 2
daily press have emphasised this language problem, pointing out that although doctors
entering from the EU have a requirement to pass a special English language test,
ancillary workers do not. And yet the latter are just as capable of being found guilty of
clinical negligence; consider the healthcare assistant who gives a meal to the ‘nil by
mouth’ patient who perhaps is being prepared for theatre, or has lost the ability to
swallow; either way, disaster looms.
Foreign doctors from outwith the EU who seek work in the UK are required to pass a
language test but, until recently, no such provision was stipulated for those entering
the UK from the EU despite stipulation by the latter that they “…’shall’ 109 have
knowledge of languages necessary for practising the profession in the host member
state”. 110 The previous government compounded the medical manning crisis in this
country with the directives it introduced with regard to the working hours of general
practitioners, such that it has been necessary to ‘import’ doctors; a recipe for disaster
as evidenced by the ‘German’ GP who accidentally killed a patient: the doctor’s
English was so poor that, in spite of having been rejected by several locum agencies,
when faced with an unfamiliar drug the doctor administered ten times the
recommended dose of morphine resulting in the death of the patient. 111 It was a
potentially avoidable situation. If vetting both the language and clinical skills of all
those who wish to work in the NHS either on a temporary or permanent basis had
been mandated at the time, and enforced, this doctor would never have been allowed
to practise in this country. There must be a level playing field with regard to medical
education and language skills; it should matter not where a clinician originates but his
skills must be above reproach.
The impact of the EU directives on working hours 112 must also be considered in the
context of the potential for medical negligence. Junior doctors learn their acute
medicine on the wards after qualification, not during their lectures in a sterile
environment. The impact of a shorter working week can only be a negative one.
Knowledge of acute medicine is assimilated when manifested at its worst in the early
hours of the night. That is when the acute asthmatics go into status, the myocardial
infarctions occur, the diabetics ‘go off’ and the dying die; a steep learning curve is
now lost in the name of reform. Not only are junior doctors not seeing acute medicine
but, because of the working hours stipulated by the EU, they are not getting to follow
up the patients with consequent loss of knowledge and, with it, the potential for future
clinical disaster.
As to the future? There are those who envisage that the Human Rights Act 1998 has
the potential to be applied in cases on medical negligence; there are others who
109 --European Economic Area Doctors – Mutual Recognition and Language Testing. July 2011.
accessed 5
February 2012. The word ‘shall’ is emphasised in the original document. It is a legal requirement.
110 ibid 1.
111 James Meikle and Kate Connolly ‘German GP who accidentally killed patient was advised to go
home’ (23 August 2009) The Guardian
accessed 18 April 2010.
112 EU Directive drives reform of junior doctor’s working hours.
accessed 19 April 2010.
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Battling Bolam
consider that legislation, committees and guidelines will combat the growing problem
of clinical negligence, but at the cost of stifling innovation and the promotion of
defensive medicine. And as to the judiciary, perhaps it is for them to expand on
Bolitho. Time to polish the gloss? 113
113
Nicholas Wilkes “Bolam Out?” (15 September 2003) The Lawyer
accessed 19 January 2010

CASE NOTES
CASE NOTE – AL SKEINI AND OTHERS V UNITED KINGDOM (2011) 53
EHRR 18
Tom Hamilton, University of Cambridge
I - Introduction
The judgment in Al Skeini and Others v United Kingdom, 1 delivered jointly with Al
Jedda v United Kingdom 2 by the European Court of Human Rights (“the Court”) on 7
July 2011, represents the most significant Strasbourg jurisprudence on
extraterritoriality to date. The approach adopted by the Court has been identified by
many as a progressive step towards protecting human rights during times of armed
conflict, and it is widely and rightly considered to be a substantial departure from the
approach taken ten years earlier in the Bankovic case. 3 Notwithstanding some progress
in defining the principles governing jurisdiction, there is a long way to go before
Council of Europe states who export war will be obligated to export a full set of
corresponding human rights guarantees, as demonstrated by the concurring opinion of
Maltese Judge, Giovanni Bonello. Perhaps the most prescient jurisprudence to come
out of the case lies in Judge Bonello’s self-confessed ‘dream’ of a functional approach
to extraterritoriality.
II - Previous Approaches to Extraterritorial Jurisdiction
Defining the extent of jurisdiction must begin with a consideration of Article 1 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”), which provides as follows:
“The High Contracting Parties shall secure to everyone within their
jurisdiction the rights and freedoms defined in Section I of [the]
Convention.” 4
Various interpretations of ‘within their jurisdiction’ were developed, and by the time
the Court came to consider Bankovic, a number of formulations including “effective
control” (Loizidou v. Turkey 5 ), “overall control” (Cyprus v. Turkey 6 ) and “personal
control” (Öcalan v. Turkey 7 ) had been used to define the circumstances in which a
contracting state has sufficient responsibility over an area outside of its territory such
1 (2011) 53 EHRR 18.
2 (2011) 53 EHRR 23.
3 See, for example: Marko Milanovic, ‘Al-Skeini and Al-Jedda in Strasbourg’ E.J.I.L. 2012, 23(1),
121-139, at 122, citing Bankovic and Others v Belgium and Others (2007) 44 EHRR SE5.
4 Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) 213
UNTS 222; 312 ETS 5, entered into force 3 September 1953, Article 1 .
5 (1997) 23 EHRR 513.
6 (2002) 35 EHRR 30.
7 (2005) 41 EHRR 45.

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Al Skeini and Others v United Kingdom
that extraterritorial jurisdiction applies. In Bankovic, the Court considered the
complaints of civilians arising from death, injury and other losses following the
bombing of Belgrade by NATO aircraft in 1999 during the war in Kosovo. The Court
held that jurisdiction was essentially a territorial matter, and created a general rule
that the physical territory of a contracting state would provide the boundaries of its
Article 1 obligations in most circumstances. The Court recognised the existence of
several exceptions developed in its case law, including military occupation and
transfers of power arising from the consent, invitation or acquiescence of the
government of a state. In those exceptional situations the test would be one of whether,
first, the state could be considered to have effective control of an area, and second,
whether the state exercised public powers that would normally be exercised by the
government of the occupied state.
In addition, the Court acknowledged that in order for the Convention to fulfil its
purpose of ensuring human rights protections within the territories of all Council of
Europe states, it was necessary for extraterritorial jurisdiction to apply throughout the
espace juridique of the Convention. In other words, a contracting state would remain
liable for breaches of its Convention obligations even if the breaches occurred in the
territory of another contracting state. If this were not the case, the Court reasoned, a
vacuum of liability would exist within the legal space of the Convention. The
emphasis on the notion of espace juridique in Bankovic supported a restrictive
interpretation of Article 1, limiting the commitment of contracting states to respecting,
protecting and enforcing remedies for violations of human rights only within the
territorial boundaries of the Council of Europe states.
III – Judgment of the Court in Al Skeini
The Court in Al Skeini had to consider the extent of the United Kingdom’s jurisdiction
in a region of Iraq administered by the Coalition Provisional Authority from May
2003 to June 2004 under the responsibility and control of the United Kingdom, whose
troops were deployed in the same area. Six applicants alleged violations of their rights
under the Convention arising from acts attributable to the British armed forces. In
considering the general rule that jurisdiction under Article 1 was essentially territorial,
the Court identified three categories of exceptions to the rule: a state agent exception;
an effective control exception; and an exception based on the concept of espace
juridique.
The first category provides that jurisdiction may be established outside of the territory
of a contracting state through the “authority and control” of a state agent. 8 Existing
examples included: the authority and control held by diplomatic and consular agents;
the authority and control implicit when a non-contracting state gives its consent for
some or all of the public powers of its government to be exercised by a contracting
state; and the authority and control arising where the use of force by an agent of a
contracting state brings an individual under the control of its authorities. The second
category covered situations where jurisdiction may be established as a result of
military action, such that a state is in “effective control of an area” outside of its
territory. 9 The definition of “effective control” appears to have been left deliberately
broad by the Court, leaving scope for further refinement based on future factual
8 Al Skeini and Others v United Kingdom (n 1) 133.
9 Al Skeini and Others v United Kingdom (n 1) 138.

UK Law Students’ Review – 2013 – Volume 1, Issue 2
scenarios. With regards to the third category, the Court reiterated the concept of
espace juridique, relying essentially on the same grounds as Bankovic, namely that
there should be no legal vacuum in the jurisdictional reach of the Convention within
the territory of the Council of Europe member states. 10
IV - Beyond Bankovic
In Al Skeini, the Court reasserted the territorial basis of jurisdiction found in Bankovic,
stating that the establishment of further exceptions would be highly dependent on the
particular case. The Court stated:
“In each case, the question whether exceptional circumstances exist
which require and justify a finding by the Court that the state was
exercising jurisdiction extraterritorially must be determined with
reference to the particular facts.” 11
At first blush, one might conclude that Al Skeini does not depart substantially from the
basic principles in Bankovic, but it is the way in which the above three categories
were applied to the facts of Al Skeini which suggests the Court had in mind an
approach which extends beyond previous cases. The Court in Al Skeini arguably
created a fourth category of extraterritorial jurisdiction.
In its conclusions, the Court held that the United Kingdom had taken on some of the
“public powers” which would normally be considered sovereign to Iraq. 12 The Court
continued to reason that:
“In particular, the United Kingdom assumed authority and
responsibility for the maintenance of security in South East Iraq.
In these exceptional circumstances, the Court considers that the United
Kingdom, through its soldiers engaged in security operations in Basrah
during the period in question, exercised authority and control over
individuals killed in the course of such security operations, so as to
establish a jurisdictional link between the deceased and the United
Kingdom for the purposes of Article 1 of the Convention.” 13
The passage cited above stands out because it is shows how the Court’s reasoning
cannot be easily reconciled with a strict-edged approach to the three categories that
were identified earlier in its judgment. Instead, the judgement suggests that the Court
approached the test for jurisdiction by using a broad assessment of the overall degree
to which a respondent state has adopted another state’s public powers, within which
lies a consideration of the role of state agents in exercising authority over individuals
and a consideration of the control of a state over the territory in question. These
considerations may be better understood simply as particular aspects of the overall
question of public power. In this sense a jurisdictional link between the applicants and
the respondent state might be established on the basis of an overall assessment of
‘public power’ attributable to the contracting state. Thus, jurisdiction might exist in
situations where it is not established that the applicant was under the authority and
10 Al Skeini and Others v United Kingdom (n 1) 141.
11 Al Skeini and Others v United Kingdom (n 1) 132.
12 Al Skeini and Others v United Kingdom (n 1) 149.
13 ibid.
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Al Skeini and Others v United Kingdom
control of the respondent state, and it is not established that the territory on which
they were said to have suffered their grievance was under the authority and control of
the respondent state.
V - A Functional Approach to Jurisdiction
This brings us to the thoughtful remarks of Judge Bonello, who has since retired from
the Court. Advocating a broader approach to the extraterritorial obligations of
contracting states, Judge Bonello made the point that states who have signed up to the
immutable principles which underlie the fundamental functions of the Convention
ought to be willing to do their utmost to work towards the supremacy of the rule of
human rights law wherever they can, not just on an à la carte basis on their home turf.
An alternative approach would be based on the functionality of the powers
attributable to a state:
“States ensure the observance of human rights in five primordial
ways: firstly, by not violating (through their agents) human rights;
secondly, by having in place systems which prevent breaches of human
rights; thirdly, by investigating complaints of human rights abuses;
fourthly, by scourging those of their agents who infringe human rights;
and, finally, by compensating the victims of breaches of human rights.
These constitute the basic minimum functions assumed by every state
by virtue of its having contracted into the Convention.
A “functional” test would see a state effectively exercising
“jurisdiction” whenever it falls within its power to perform, or not to
perform, any of these five functions. Very simply put, a state has
jurisdiction for the purposes of Article 1 whenever the observance or
the breach of any of these functions is within its authority and
control.” 14
The comments of Judge Bonello reward close reading, especially as he goes on to
deal with a number of the potential barriers to a functional approach that were raised
during the case. Against the problem of indivisibility of human rights, the Judge
argues that a state need not enforce all of the rights in the Convention merely because
extraterritorial jurisdiction has been established. A finding of extraterritorial
jurisdiction may obligate a state to enforce certain human rights, but under a
functional approach, a state would only be obligated to enforce the human rights
which it is in a position to ensure. For example, although the United Kingdom as an
occupying power in Iraq might not be in a position to ensure rights to education under
Protocol 2 Article 1, it may very well be in a position to enforce Article 3 rights to
freedom from torture.
Judge Bonello admits a streak of idealism to his approach, but contends that adopting
such an approach is preferable to giving in to the seductive rhetoric of “human rights
imperialism.” 15 The United Kingdom government had argued earlier in the case that
imposing extraterritorial jurisdiction would involve putting the United Kingdom in
the position of a human rights imperialist. But as the Judge hinted, if a state is
14 Al Skeini and Others v United Kingdom (n 1), Judgment of Judge Bonello, 10-11.
15 Al Skeini and Others v United Kingdom (n 1), Judgment of Judge Bonello, 37.

UK Law Students’ Review – 2013 – Volume 1, Issue 2
unashamed by imperialism in its military campaigns, it is unlikely to blush at
accusations of adopting an imperialist approach to promoting human rights.
The clarity and simplicity of a functional approach seems to cut through many of the
problems that the rest of the Al Skeini judgment leaves unresolved. Although Al Skeini
undoubtedly builds on Bankovic and clarifies the basic categories in which
extraterritorial jurisdiction may be established, it reaffirms the position that the
application of these categories is highly flexible, dependent on the particular facts of
each case, and requires further interpretation before there will be true certainty in the
law for victims of human rights violations perpetrated by Council of Europe states
overseas.
93

CASE NOTE – CAMPBELL V MIRROR GROUP NEWSPAPERS LTD [2004]
UKHL 22. THE RELATIONSHIP BETWEEN THE EUROPEAN
CONVENTION ON HUMAN RIGHTS AND PRIVACY IN THE COMMON
LAW
Emily Whittaker, Exeter University
I – A Move in the Law
"As a campaigner, Naomi's about as effective as a chocolate soldier.” 1 This statement
by ‘The Mirror,’ can now be regarded with irony. The House of Lords’ decision in
Campbell has become a landmark ruling for the recognition of privacy, arguably
‘spurred’ by the integration of the Human Rights Act 1998. 2 It is considered to
incorporate the invasion of privacy into the common law action of ‘breach of
confidence.’
Naomi Campbell brought an action on ‘breach of confidence.’ The traditional
requirements for this action are outlined in Coca. 3 However, the House of Lords
followed Lord Goff in Spycatcher (No2) and classified a confidential relationship as
one where the ‘defendant knew or ought to know the information would be
considered [by the claimant] as private.’ 4 This removed the limitation of pre-existence
from the relationship, confirming a widely anticipated development 5 .
The Lordships then appeared to extend the test by distinguishing between information
which is ‘confidential’ and that which is ‘private’. It was this distinction which led to
the phrase ‘misuse of private information.’ 6
II – Misuse of Private Information: The Tests
To apply what may be seen as a broadened tort one must decide what constitutes
‘private information.’ Three tests arose. The first: based on the facts did the claimant
have a ‘reasonable expectation of privacy?’ 7 The second: would the information be
“highly offensive to a reasonable person of ordinary sensibilities”, based on the
position of the claimant? 8 The third: was the information ‘obviously private?’ 9
1 The Mirror, 7th Feb as cited in Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22 [9] (Lord
Nicholls)
2 Campbell v Mirror Group Newspapers Ltd [2004] per Lord Nicholls
3 Coca v A N Clarke [1969] F.S.R 415. [47-48]
4 Attorney-General Appellants v Observer Ltd. and Others Respondents
Attorney-General Original Appellant and Cross-Respondent v Times Newspapers Ltd. and Another
Original Respondents and Cross-Appellants [1990] 1. A.C 109 [281] per Lord Goff of Chieveley
5 Phillipson,‘Transforming Breach of Confidence? Towards a common law right of privacy under the
HRA’ (2003) 66 MLR 726. As cited by Lunney.M, Oliphant.K , ’Privacy, Confidence and Human
Rights;Tort Law Text and Materials’, (4th edition, 2010. New York, OUP)
6 Campbell (n 2) [14] per Lord Nicholls
7 ibid [11] per Lord Nicholls
8 ibid per Lord Hope
9 ibid

UK Law Students’ Review – 2013 – Volume 1, Issue 2
Does the proposal of alternate tests simply add confusion to the scope of privacy? The
incorporation of a subjective element into the first two tests is welcomed. 10 The first
test of ‘reasonable expectation‘ is applied by Lord Phillips in Douglas v Hello 11 and is
regarded clearer and simpler than the ‘highly offensive‘ criteria. 12 It is argued by Lord
Nicholls that the criteria of the second test is a more challenging bar for the claimant
to prove. The concern is that, in order to evidence this, one may consider the weight
of the intrusion of privacy and thus merge the question of privacy and
proportionality. 13
The ‘highly offensive’ test was intended by Lord Hope for application if the
‘obviously private’ test did not suffice; thus when there is ‘room for doubt.’ 14
Although depicted as a two part test, it could be argued that the latter is unnecessary,
as ultimately the ‘highly offence’ criteria is the only hurdle the information must pass.
So what is it that the ‘obviously private’ test intends to achieve? In consideration Lord
Hope cites Lord Woolf; ‘the subject of a claim for privacy should not be allowed to
be the subject of detailed argument.’ 15 This reasoning suggests an intention of saving
time and cost. It also presents a possibility for the correction of what is perhaps a flaw
in UK law; that often in order to protect privacy the claimant’s most intimate details
are examined.
III – Judging What is Private
Is it fathomable that a claimant could circumvent private information being
discussed? If so how is the information to be decided on? Baroness Hale asserts three
categories as ‘obviously private’: ‘health, personal relationships and finances.’ 16
However, it is not held that information which fits these classifications, no matter how
marginally, shall be deemed private with no further enquiry. Consideration must be
given to the individual details, for example although clearly medical information, ‘a
cold or broken leg’ are not regarded as private information. 17 So, when applying the
facts, how is the scope of these categories to be defined? By simply contrasting
judgments considered in the later hearings of Campbell, as to whether therapy should
be regarded medical treatment, one can see there is already disparity in opinion
towards what falls within the categories. 18 It was, however, decided by the majority in
the House of Lords that the scope of the definition of ‘medical treatment’ is now
extended to included ‘therapy’.
10 N.A Moreham, (2005) ‘Privacy in the common law: a doctrine and theoretical analysis’. 121 Law
Quarterly Review 628.
11 Douglas, Zeta-Jones and Northern &Shell plc v Hello! Ltd (No5 and 6) [2005] EWCA Civ 595 per
Lord Phillips
12 Campbell (n 2) [99] per Baroness Hale
13 ibid.[22] per Lord Nicholls, paraphrased
14 ibid [94] per Lord Hope
15 A v B Plc [2003] EWCA Civ 337 [11] and [43] per Lord Woolf CJ
16 Campbell (n 2) [135] per Baroness Hale
17 ibid [157] per Baroness Hale
18 ibid
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Campbell v Mirror Group Newspapers Ltd
Contrasting judicial opinions highlight that the application of the ‘obviously private’
test can create uncertainty, which is undesirable in courts. Some argue against
established categories, as surely what one regards to be private information is
dependent on the individual. 19 Thus, the approach should not assume protected
categories, but leave these areas open to a subjective view, albeit with the need of
some objective restrictions. Although relative to both parties this argument is more
effectively raised in order to protect free speech, as the presumption which arises
based on these categories only adds to the protection of the claimant, the categories
provide useful guidelines. If written in legislature they could be deemed restrictive,
but the flexibility of common law can aid their evolution, even with the creation of
exceptions.
IV – A Shift Towards a Higher Recognition of Privacy
Regardless of which test is applied there is undeniably a shift towards a higher
recognition of privacy by the common law. Following Campbell, Jagger and
Mckennit have received injunctions over personal relationship stories. 20 This shows
that the special consideration, which Lord Woolf argued should only be afforded to
marriage, is now extended to transitional relationships. 21 As the courts encompass a
broader interpretation of privacy, it is now considered that in practice it is ‘very easy
to get through the Article 8 doorway.’ 22 If this is true, one must consider why some
‘misuse of information’ claims fail. 23
This may be because ‘private information’ is also subject to the second test in
Campbell: ‘Is the publication of the information proportionate when balancing Article
8; the right to privacy against Article 10; freedom of expression?‘ This development
of the common law can be seen as a reaction to the enactment of Human Right Act
1998. Section 6(1) imposes an obligation on the UK court in its function as a ‘public
body’ to act in a way which is compatible with the European Convention of Human
Rights. 24
At this point the law becomes relatively complex. How does one decide the weighting
of each article? Lord Hoffmann states there is ‘not a presumption in favour of one or
another,’ a view harmonious with Resolution 1165. 25 However the appeal in Peck v
UK contradicts the stance of neutrality over each right. 26 The domestic court appears
19 N.A Moreham, ‘Privacy in the common law: a doctrine and theoretical analysis’. Law Quarterly
Review 2005, 628. 656
20 Campbell (n 2); Ms Elizabeth Jagger v John Darling & Others [2005] EWHC 683 (Ch), Ash v
Mckennit [2008] Q.B.73
21 Av B (n 15)[11] and [43] per Lord Woolf CJ
22 Marcus Partington of the Media Lawyers Association as cited in The Select Committee Report on
press standards, privacy and libel. Published 24th Feb 2010 [26] www.publications.parliament.uk
23 The claim failed in the following cases: LNS (Terry) v Persons Unknown [2010] EWHC 119 (QB),
Lord Browne of Madingley v Associated Newspapers Ltd [2007] EWCA. Civ 295
24 European Convention of Human Rights 1950
25 Campbell (n 2) per Lord Hoffman, Resolution 1165 of the Parliamentary Assembly of the Council of
Europe (1998)
26 Peck v United Kingdom (44647/98) [2003] E.M.L.R. 15
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to favour freedom of expression, conversely the European Court of Human Rights
applies more weighting to privacy; as evidenced by the judgments in these cases.
The Human Rights Act also encompasses section12 ‘freedom of expression’, a
provision which the UK parliament regarded as a ‘safeguard to the press.’ 27 The
function of section12 is to acknowledge the importance of Article 10, 28 ‘where the
proceedings relate to...journalistic, literary or artistic’ material. 29 This shows that it is
not just the court as interpreter who recognises that a ‘freedom to publish of
unjustifiable restraint [is]...the sort of society which the convention seeks to
promote,’ 30 it is also the central aim of the legislature.
V – The Public Interest
The Human Rights Act section 12(4)(b) also gives effect to the PCC Code of Practice.
Section 3; Privacy, reiterates the importance of ‘public interest’ as a defence to
‘justify intrusion into one’s private life without consent.’ 31 Section 3(1)(iii) provides
the justification as to why certain private details denoting Miss Campbell’s drug
addiction were able to be published. Campbell had supplanted her right by lying to the
public about the problem, and thus ‘The Mirror’ acted in the interest of the public to
prevent them from being misled.
If Miss Campbell had not misled the public, none of the story would have been
deemed ‘justly’ published. This is because it does not follow that, as a ‘public figure
has had a long and symbiotic relationship with the media,’ 32 publication is justified.
Details of one’s life, that are not wished to be promoted, engage a residual right which
the court must protect. 33 This right appears analogous to that obtained by the ordinary
person. Thus, even though there may be a public interest in the life of a celebrity or
sportsman, this is to be distinguished from the definition of ‘public interest’
implemented by the courts. Article 10 provides publication must be ‘...necessary in a
democratic society.‘ Considered crucial to democracy are matters relevant to the
‘political, economic and social life of the community. 34 The order forms that of
priority, with political speech notably above the rest.
So, can it be implied that as the courts must apply Article 8; a right which can only be
superseded on grounds of ‘genuine public interest’, that rulings post implementation
of the Human Rights Act, such as Mckennit 35 and Mosley, 36 signal the end for ‘kiss
27 The then Home Secretary, the RT Jack Straw MP paraphrased in (2010) The Select Committee
Report on press standards, privacy and libel. Published 24th Feb [26] Available:
www.publications.parliament.uk/pa/cm/cmcumeds.htm [16th November 2010] citing HC Deb 2 July
1998, col 54.
28 European Convention of Human Rights 1950, Article 10.
29 Human Rights Act 1998 Section 12(4)
30 Jameel v Wall Street Journal Europe SPRL (No.3) [2006] UKHL 44 [17] (Lord Bingham of
Cornhill)
31 Press Complaints Commission Code of Practice 1991.Avaliable: www.pcc.org.uk/cop/evolving.html
[16 th November 2010]
32 Campbell (n 2)[57] per Lord Hoffman
33 ibid [68] per Lord Hoffman
34 ibid[148] per Baroness Hale
35 Niema Ash & Others v Loreena Mckennit & others [2008] Q.B.73
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Campbell v Mirror Group Newspapers Ltd
and tell’ stories? This is the view of a report from the ‘Reuters for the study of
Journalism’ which concluded that the only chilling effect imposed on the media, as a
result of the Human Rights Act, was the end of these exposés. 37 On the surface this
can be regarded as a positive development, which encourages media responsibility.
However could this aim become distorted in practice? Max Mosley is a figurehead of
Formula One and an economic and social representative of the UK. The fact that he
managed to protect his privacy, against the right to free speech, by analogy, presents
the fear that other members of strategic institutions, including politicians or school
teachers, may use this judgment to conceal actions that may once have led to
resignation. 38 Thus blurring transparency in democracy. Recently, the Italian Prime
Minister used the recourse of privacy to prevent the publication of photographs of a
party, which was ‘allegedly attended by escorts.’ 39 Moreover according to staff at the
newspaper ‘La Vangurdia,’ in Spain a story about a politician having an affair would
not be released. 40 It is to be remembered that each member state has its own media
culture, in which the question of ‘whether a journalist exceeds the latitude afforded to
them’ is construed differently. 41 In the UK political speech is regarded as crucial and
therefore it remains unlikely that stories which seek to protect this interest will be
prevented.
VI – The Whole Story
In Campbell a main factor perceived to exceed the journalistic latitude was the
publication of the photographs. 42 Lord Hope states ‘looking to the text only, I would
have been inclined to regard the balance between these rights as about even.’ 43 The
tone of the story, ‘sympathetic [or not] was neither here nor there.’ 44 This suggests
that a vindictive story with no picture could, depending on the facts, be considered
acceptable. So, what is it about an image which is deemed so intrusive? In Campbell
the focus is not on the image itself, but the circumstances in which it was taken; on a
public street, surreptitiously, without Miss Campbell’s consent. It was noted that by
giving effect to decisions of the European Court of Human Rights such as Peck v UK,
36 ,Mosley v Mirror Group Newspapers Ltd [2008] EWHC 687
37 Stephen Whittle and Glenda Cooper, Reuters for the study of Journalism,Oxford as cited by David
Eady,(2010) ‘Injunctions and the protection of Privacy’, Civil Justice Quarterly vol 29, no.[internet]
www.lawlib.wlu.edu. Available [12th November 2010]
38 Gideon, ‘Only the public interest can justify invasion of privacy’, (2008) The Lawyer, 11 August.
Available: www.thelawyer.com/only-the-public-interest-can-justify-invasions-ofprivacy/134127.article
[14th November 2010]
39 Prime Minister Silvio Berlusconi. As cited in (2004) Select Committee Report on press standards,
privacy and libel. [internet] 24th Feb [16] www.publications.parliament.uk/pa/cm/cmcumeds.htm,
Available [16th November 2010] cited from "Berlusconi fury over naked photos", BBC news online, 5
June 2009 news.bbc.co.uk
40 Select Committee Report on Press standards, privacy and libel. Published 24th Feb 2010
[17]www.publications.parliament.uk/pa/cm/cmcumeds.htm
41 Campbell (n 2) [68] per Lord Hoffman
42 ibid
43 ibid [121] per Lord Hope
44 ibid [156] per Baroness Hale
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that privacy can be extended to included activities conducted in public. 45 Moreover,
lack of consent is currently not enough to establish privacy in the UK. However, this
could be subject to change following Von Hannover, 46 which gave Princess Caroline a
right over her own image, and the domestic ruling in Murray. 47 Yet, the latter can be
distinguished as applicable only to children and the former was not adopted in John v
Associated Newspapers. 48
VII – Conclusion
The focus of Campbell seemed to be the concept of looking at everything as a whole.
Although the picture or article alone were not regarded private, together they were.
The right to privacy was not obtained on the basis of one specific fact, but a
culmination of many. Following the Human Rights Act the common law has taken a
much broader approach to privacy, with the duty to act compatibly playing a large
role. Striking the balance is a more onerous task; I recommend Lord Hoffmann’s
approach. He takes one fact and balances what the editor considers it adds to the story
against how the claimant feels it adds to the intrusion. Despite the theory of balancing
rights, there is an obvious trend towards the infringement of freedom of speech.
Although John v Associated Newspapers presented resistance, 49 it is inevitable that
what is actually shown is reluctance. The recent recognition in Mckennit, 50 that the
principles in Von Hannover should receive a more general application highlights
this. 51
45 Peck (n 26)
46 Von Hannover v Germany (59320/00) (2006) 43.E.H.R.R.7,
47 .Murray v Express Newspapers plc and another [2008] EWCA Civ 446.
48 John v Associated Newspapers Ltd. [2006] EWHC 1611 (QB)
49 ibid
50 Ash v Mckennit (n 35)
51 Von Hannover (n 46)
99

CASE NOTE – JUDGMENT OF THE EUROPEAN COURT OF JUSTICE,
13 OCTOBER 2011, PIERRE FABRE DERMO-COSMÉTIQUE SAS, C-439/09
CONCERNING ANOTHER RESTRICTION BY OBJECT ON INTERNET
SALES BAN
Dr. iur. Verena Klappstein, London School of Economics
(Article 101(1) and (3) TFEU – Regulation (EC) No 2790/1999 – Articles 2 to 4 –
Competition – Restrictive practice – Selective distribution network – Cosmetics and
personal care products – General and absolute ban on internet sales – Ban imposed by
the supplier on authorised distributors)
I – Introduction
The European Court of Justice (ECJ) ruled in line with recent case-law 1 on the
general and absolute de facto ban of internet sales in a selective distribution network.
Thereby strengthening the internet as a sales channel. Neither the protection of
customers against the incorrect use of products 2 nor the manufacturer's intention to
maintain its prestigious image 3 were legitimate aims to justify such a ban.
Furthermore the safe harbour provided in the vertical agreements block exemption
regulation (Regulation (EC) No 2790/1999, VABER 4 ) was narrowed, 5 with the
application of Article 101(1) TFEU expanded. This decision of the ECJ's purports the
Commission's view in its re-draft of VABER.
II – The Significant Facts
Pierre Fabre Dermo-Cosmétique SAS (PFDC) produces and sells cosmetics. These
cosmetics are primarily sold in pharmacies, however they are not medicines. PFDC's
French market share in 2007 was approximately 20% 6 . Distribution contracts for four
brands of its products stipulated that sales had to be “made exclusively in a physical
space, in which a qualified pharmacist must be present” 7 . With this provision PFDC
excluded de facto online sales. After a general investigation of the distribution
practices in the cosmetics sector, the French Competition Authority (Conseil de la
concurrence) ordered PFDC “to remove from its selective distribution contracts all
terms that are equivalent to a ban on internet sales [...] and to make express provision
in its contracts for an option for its distributors to use that method of distribution [and]
to pay a fine of EUR 17 000” 8 . PFDC appealed this order before the cour d’appel de
Paris, reasoning that the decision was illegal as it denied the block exemption of
VABER as well as the individual exemption of Article 101(3) TFEU. The cour
d’appel de Paris asked the ECJ two questions in the preliminary process:
1 ECJ 2 December 2010 (Ker-Optika bt C-108/09) Para 76.
2 See below: IV(a).
3 : See below: IV(a).
4 Regulation (EC) No 2790/1999 of 22 December 1999, OJ L 336/21.
5 See below: IV(b).
6 ECJ 13 October 2011 Pierre Fabre Dermo-Cosmétique SAS C-439/09 PARA 11.
7 Pierre Fabre Dermo-Cosmétique (n6) para 12.
8 Pierre Fabre Dermo-Cosmétique (n6) para 27.

UK Law Students’ Review – 2013 – Volume 1, Issue 2
• Firstly, whether “a general and absolute ban on selling contract goods to endusers
via the internet, imposed on authorised distributors in the context of a
selective distribution network, in fact constituted a “hardcore” restriction of
competition by object” 9 (Article 101(1) TFEU) 10 ?
• Secondly, whether this was justified either by a block exemption according to
VABER 11 or by an individual exemption according to Article 101(3) TFEU 12 ?
III – The Issue and the Result
III(a) – The restriction of competition by object, Article 101(1) TFEU
The contractual clauses used by PFDC provide a restriction by object, according to
Article 101(1) TFEU. Even after individual and specific examination neither its
content nor its objective nor its economic context cannot yield an objective
justification.
III(b) – The justification: (1) The block exemption, Regulation (EC) No 2790/1999
(VABER)
The block exemption provided for in Article 2 VABER with regard to Article 4(c)
VABER is not applicable to a selective distribution contract with a clause prohibiting
de facto internet sales.
III(c) – The justification: (2) The individual exemption, Article 101(3) TFEU
Though a contract with such a clause might benefit from the exception provided for in
Article 101(3) TFEU the ECJ could for the lack of sufficient information not decide
on this matter.
IV – The Reasons
IV(a) – The restriction of competition by object, Article 101(1) TFEU
So do PFDC's contractual clauses provide a restriction of competition by object
within the internal market? If affirmed, the French Competition Authority did not
have to prove that any potential harm to competition existed. Thus the restriction of
competition by object is similar to the U.S. concept called per se illegality (Section 1
of the Sherman Act).
To answer the first question one has to look at the precise purpose of the agreement
within the economic context in which it is to be applied. 13 That involves respect to all
circumstances, especially the clause's content and objectives, as well as its economic
9 Pierre Fabre Dermo-Cosmétique (n6) para 31.
10 See below: IV(a).
11 See below: IV(b)(1).
12 See below: IV(b)(2).
13 ECJ 30 June 1966 (Société Technique Minière (L.T.M.) C-56/66) ECR 1966 p. 235 (249); ECJ
Pierre Fabre Dermo-Cosmétique (n6) para 34.
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and legal context. 14 PFDC's clause stipulates that the sales of a certain four brands of
its products have to be made in an external space, where a qualified pharmacist is
present, where from, it can be concluded that internet selling is de facto prohibited as
it does not provide a physical external space where a pharmacist can be present. 15
Thereupon, the ability of a distributor to sell PFDC's products to customers outside of
his contractual area of activity is reduced, restricting competition in that very sector. 16
The ECJ once again emphasised that agreements which constitute a selective
distribution system necessarily affect the competition in the common market and are –
as long as an objective justification is missing – restrictions by object. 17
Such an objective justification might be the maintenance of a specialist trading
network that is capable of providing specific services and therefore lead to a reduction
of price competition, but at the same time attaining the improvement of competition
to factors other than price. 18 For that, the resellers have to be chosen on the ground of
objective criteria of quality, uniformly applicable to all potential resellers. Such a
network has the following three requirements: firstly, it has to preserve the products’
quality, secondly, it must ensure its proper use and thirdly, the criteria have to be
necessary. 19 With the contractual clauses at issue PFDC laid down objective and
uniformly applicable criteria to select the resellers. But the ECJ held that in a selective
distribution system, the distributor could be restricted by the supplier, if – and only if
– the supplier could come up with a legitimate aim that is proportionate to the given
restrictions. 20 With regard to the freedoms of movement the need to provide the
customer with individual advice, therewith ensuring his protection against the
incorrect use of products is not sufficient if it concerns non-prescription medicines
and contact lenses, thus banning internet sales. 21 As the cosmetic products are neither
medicines nor similar products that provide a significant risk to the consumers, they
do not need to be selectively distributed by a physically present pharmacist. The
manufacturer's intention to maintain its prestigious image 22 cannot provide a
sufficient and proportionate aim to justify the restriction of competition by object.
To summarise, neither the protection of customers against the incorrect use of
products nor the manufacturer’s intention to maintain the prestigious image of the
14 ECJ 6 October 2009 (GlaxoSmithKline Services Unlimited and others Cases C-501/06 P, C-513/06
P, C-515/06 P and C-519/06 P) ECR 2009 p. I-9291, para 58; Pierre Fabre Dermo-Cosmétique (n6)
para 35.
15 Pierre Fabre Dermo-Cosmétique (n6) paras 36 & 37.
16 Pierre Fabre Dermo-Cosmétique (n6) para 38.
17 ECJ 25 October 1983 (AEG-Telefunken C-107/82) ECR 1983, p. I-3151, para 33; Pierre Fabre
Dermo-Cosmétique (n6) para 39.
18 AEG-Telefunken C-107/82 (n17); Pierre Fabre Dermo-Cosmétique (n6) para 40.
19 ECJ 22 October 1986 (Metro SB-Großmärkte C-26/76) ECR 1977, p. I-1875, para 20; ECJ 11
December 1980 (L’Oréal C-31/80) ECR 1980, p. I-3775, p. 3790 para 15 & p. 3791 para 16; Pierre
Fabre Dermo-Cosmétique (n6) para 41.
20 Pierre Fabre Dermo-Cosmétique (n6) para 43.
21 ECJ 11 December 2003 (Deutscher Apothekerverband C-322/01) ECR 2003 p. I-14887, 14996 paras
106 & 107, p. 14998 para 112; ECJ 2 December 2010 (Ker-Optika bt C-108/09) para 76; Pierre Fabre
Dermo-Cosmétique (n6) para 44.
22 Pierre Fabre Dermo-Cosmétique (n6) paras 45 & 46.
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UK Law Students’ Review – 2013 – Volume 1, Issue 2
products can, with regard to cosmetic products, be a legitimate aim for an objective
justification, thus annulling the given restriction of competition by objective. 23
IV(b) – The justification: (1) The block exemption, Regulation (EC) No 2790/1999
(VABER)
The ECJ then reflected on a possible justification in the case of a selective distribution
contract that was rendered anti-competitive by its object.
PFDC's first argument was that as the ban on internet sales was stated in a vertical
agreement (Articles 2 VABER) – itself as a supplier with a market share that did not
exceed 30% of the relevant market (Article 3 VABER) – then the ban was similar to a
prohibition on operating out of an 'unauthorised place of establishment'. That is why
PFDC should be benefiting from the block exemption according to Articles 2 and 3
VABER. 24 Article 4 (c) VABER excludes the application of Article 2 VABER for
vertical agreements which have as their object “the restriction of active or passive
sales to end users by members of a selective distribution system operating at the retail
level of trade”. The utilised contractual clauses that prohibited de facto the internet as
a way of marketing have as their object the restriction of passive sales to end users
who wish to buy online and in a different place from the one of the relevant member
of the selective distribution system. 25 But Article 4 VABER provides in its last
sentence a counter-exception for “the possibility of prohibiting a member of the
system from operating out of an unauthorised place of establishment”. However,
PFDC argued that the clauses used would meet this last sentence's counterexception.
26 The ECJ specified that “a place of establishment” according to
Article 4 (c) last sentence VABER literally concerned only outlets where direct sales
take place. A broad interpretation of the block exemption Articles, to include places
from which internet sales services are provided was not needed on the base of a
systematic argument: the individual exception in Article 101(3) TFEU already gives a
broad protection. 27 Thus, the ECJ distinguished the internet sales method from an
“unauthorised place of establishment” and held the internet to be a marketing
mechanism. 28 As a result, a selective distribution contract containing a clause that
prohibits de facto the internet as a method of marketing the contractual products
cannot be subsumed to Articles 2 & 4(c) VABER and therewith a valid justification. 29
IV(b) – The justification: (2) The individual exemption, Article 101(3) TFEU
As the ECJ did not deem itself to have sufficient information as to whether an
individual exception according to Article 101(3) TFEU could be satisfied by the
23 Pierre Fabre Dermo-Cosmétique (n6) para 47.
24 Pierre Fabre Dermo-Cosmétique (n6) paras 51 & 52.
25 Pierre Fabre Dermo-Cosmétique (n6) para 54.
26 Pierre Fabre Dermo-Cosmétique (n6) para 55.
27 Pierre Fabre Dermo-Cosmétique (n6) para 56 & 57.
28 Pierre Fabre Dermo-Cosmétique (n6) para 58.
29 Pierre Fabre Dermo-Cosmétique (n6) para 59.
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clauses at issue that de facto prohibited online sales, it referred the question back to
the cour d’appel de Paris. 30
V – The Two Ratio Decidendi
Contractual clauses that generate a general and absolute de facto ban of internet sales
in a selective distribution network are a restriction of competition by object according
to Article 101(1) TFEU, as long as the restriction cannot be objectively justified with
attributes of the product at issue.
Such a general and absolute de facto ban of internet sales in a selective distribution
network cannot generally be an exemption according to Regulation
(EC) No 2790/1999, VABER, though it might in exceptional circumstances be
justified according to Article 101(3) TFEU.
VI – The Author’s Thoughts on the Decision
Internet sales in the European single market are very important, and viewed as such
by the Commission and the ECJ. With regard to the Commission's supplementary
guidelines on vertical restraints (2010/C 130/01, especially pp. 13 paras 52 et seqq.),
of May 2010, that emphasis placed on the importance of internet sales in the
European Union the ECJ judgment does not come as a surprise. Unfortunately the
decision neither uses para 56 of the guidelines as a supporting argument for the
interpretation of Article 4(c) VABER nor does it answer the multitudinous questions
resulting from these very guidelines. But at least it confirms the Commission's view
that an absolute and general ban on internet sales has more often than not to be
considered to restrict, by its very object, competition as well as not being subject to a
block exemption of VABER.
Though manufacturers cannot prohibit their distributors the internet sale entirely,
there is latitude for some restrictions. Thus under certain circumstances – for instance
in contexts where the pro-competitive efficiencies resulting from such a ban outweigh
the anti-competitive restriction – an individual justification according to Article
101(3) TFEU might be possible. Hence a physical sales places might be a valid
requirement as well as to define the minimum amount of products to be sold in that
very physical place or the products presentation in the internet. While the ECJ seems
to allow a loop to justify a ban of internet sales within a legal exception, there is not
the tiniest hint which precise requirements fulfil such a justification, that are beyond
public provisions. Furthermore, the burden of proof lies with the supplier. That is why
a supplier has to analyse, with a lot of care, the situation, before he can rely on an
individual exemption, even more so as the consequences can be significant.
Ultimately, suppliers of luxuriousness are kept in doubt as to how to act.
30 Pierre Fabre Dermo-Cosmétique (n6) para 50.
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