The Denning Law Journal

Book Review

Robin R. Joyce — Wed, 26 Feb 2025 00:00:00 +0000

Book Review

Jocelynne A. Scutt — Wed, 26 Feb 2025 00:00:00 +0000

Book Review

Phillip Taylor, Elizabeth Robson Taylor — Wed, 26 Feb 2025 00:00:00 +0000

Suicide: The Scope of the Investigation in the Coroner’s Court

Andrew Harris, Anton van Dellen — Wed, 26 Feb 2025 00:00:00 +0000

There has been public concern that some suicides are not investigated to identify causes or triggers, unless required by the European Convention on Human Rights. The paper reviews the statute and case law governing the decision of the Coroner as to the scope of investigation into suicide. The role of the Coroner in assessing public interest is discussed. There is particular reference to allegations of bullying. The science of suicide and bullying is reviewed and their impact on how an inquest is held is considered. Drawing together the science and caselaw, a framework is proposed for judicial decision making.

The Legal Relationship between Universities and their Students – How Accountable and to what Extent in Law are Universities Liable for Student Suicides?

David Sykes — Wed, 26 Feb 2025 00:00:00 +0000

This article addresses how the relationship in law of universities and their students is to be characterised. Its main purpose is to establish where legal liability lies in the case of a student committing suicide, whilst undergoing an educational qualification. Characterisation of the relationship between universities and their students has been included within a number of models which are set out and assessed, the aim being to show the range of characterisation and at the same time point out the defect(s) in each characterisation. This analysis is undertaken in searching for a more meaningful and coherent model of the legal relationship between the university and the student. A legal framework of accountability is essential. Exploration of more conventional ways of addressing this, and alternatives, is required. The article therefore includes for consideration a less fashionable potential classification of a fiduciary relationship between universities and their students. It explores, too, the possibility in public law of founding a breach of a substantive legitimate expectation challenge where promises of safeguarding have been made to the now deceased student. This phenomenon goes beyond the United Kingdom, so reference is made to case law in other jurisdictions, such as Canada and USA.

A Role for Parliament in Independent Judicial Appointments: Insights from the Comptroller and Auditor General

Maximilian Taylor — Wed, 26 Feb 2025 00:00:00 +0000

In the UK, there is a debate as to whether Parliament should have a role in judicial appointments similar to the that of the US Senate. The minority in favour of this position argues that it would enhance the democratic legitimacy of the judiciary – who are currently selected by various independent commissions – and refers to the proposed reform’s coherence with the general practice of pre-appointment hearings in the UK (such as for the Chair of the Equality and Human Rights Commission) and other parliamentary systems. However, the majority against this position argues that meaningful input into judicial appointments, by parliamentarians, would necessarily undermine the impartiality of the judiciary and outweigh the benefits of judicial democratisation. This paper seeks to add to the debate by establishing a detailed proposal for a parliamentary confirmation model for nominations to the UKSC and arguing that it would be both consistent with and enhancing to judicial independence. The research compares the constitutional foundations and historical origins of the Comptroller and Auditor General – an independent office co-nominated by the Government and Opposition, but confirmed by Parliament – and the UKSC, plus the American and Canadian Supreme Courts. This paper fundamentally argues three points: that there is a democratic deficit in the UKSC judicial appointment model; that the Comptroller and Auditor General is sufficiently equivalent to the UKSC so that its appointment model could be translated onto judicial appointments; and that said translation would remedy said democratic deficit, without compromising the non-partisanship of the UKSC.

Alternative Dispute Resolution (ADR), Islamic Marriage, Divorce and Child Custody in England and Wales

John Mayberry — Wed, 26 Feb 2025 00:00:00 +0000

This article considers the inter-relationship between Islamic Law and case and statute law as it relates to legal practice in England and Wales. The emergence of Shari’a in the United Kingdom is briefly considered together with the Islamic origins of arbitration and the development of Shari’a Councils and arbitration bodies. It reviews the place of mediation and arbitration in decisions related to divorce, payment of mahr and child custody issues. These are considered within the case law which reports the outcomes in English courts, when marital disputes have not been settled through traditional means. Attention is also paid to the potential role of traditional attitudes on outcomes both within Shari’a councils and English courts.

The Voice of the Trees in the Law of Armed Conflict

Helen Pringle — Wed, 26 Feb 2025 00:00:00 +0000

This article takes up questions of environmental protection, in the law and practice of armed conflict with a specific focus on the figure of the speaking tree as invoked in discussions of the protection of tree and plant life. The article canvasses historical works in which this figure appears, from the early work of Philo of Alexandria and Josephus through to the discussion of their work by Hugo Grotius. Through this endeavour, the article attempts to take seriously the figure of animated trees with the standing to speak and to be heard in legal forums. I conclude that it is not only a common humanity that is at stake in doing this, but re-orienting the interests of human creatures as in relation to the protection of trees and forests, and other ‘inanimate objects’.

Towards a Universal Climate Justice through a Human Rights-Based Approach

Stefania Toraldo — Wed, 26 Feb 2025 00:00:00 +0000

The United Nations’ historical recognition of the right to a safe, clean, healthy, and sustainable environment while strengthening the acknowledgement of the link between the protection of human rights and the environment under international law, highlights the urgency of the escalating effects of climate change on people’s lives and their fundamental rights. Along with widespread pollution and biodiversity reduction, climate change is now, in fact, one of the most serious threats to people’s health and their living environment, making it a significant obstacle to the UN 2030 Agenda’s Sustainable Development Goals (SDGs). In light of relevant scientific evidence on the current global warming status and trends, the Intergovernmental Panel on Climate Change (IPCC) has recently emphasised the need to prioritise rights-based approaches in addressing climate change, including mitigation and adaptation measures. Hence, the study aims to explore how advancing a Human Rights-Based Approach (HRBA) towards climate environmental issues may be instrumental in supporting international and national efforts to reduce greenhouse gas emissions, protect people’s rights, and achieve sustainable development. By presenting rights-based climate litigation, it will be further possible to demonstrate how international human rights and climate change law have recently evolved while offering various insights into its impacts on creating a pathway towards universal climate justice.

Contemporary International Environmental Law: The Precautionary Principle and Reversal of the Burden of Proof

LJJ Kandala — Wed, 26 Feb 2025 00:00:00 +0000

Assessing the burden of proof concerning the safety of human activities for both health and the environment presents a nuanced and intricate challenge. This paper delves into the evolving standards of burden of proof, examining the application and consequences within international environmental law. It addresses the issue of the allocation of the burden of proving harmlessness between developers and those impacted by activities. Employing a doctrinal research approach, this paper observes a shift in the allocation of the burden of proof in contemporary international environmental law. The paper synopsises that debate over the burden of proof is primarily bifurcated into two perspectives: traditional or treaty and judicial or contemporary approaches. The former posits that the responsibility to prove harmlessness rests with the developer be it private entities or the state to ensure that activities conducted within their jurisdiction do not harm the environment. Conversely, the latter marks a shift where opponents of an activity bear the obligation to furnish evidence of the harmful implications of an activity to be halted.

New Global Governance and Overarching Frameworks: Reimagining the Rule of Law, AI and ESG for the Betterment of the World

Monica Maghami — Wed, 26 Feb 2025 00:00:00 +0000

The advancement of digital technologies, particularly in Artificial Intelligence (AI), the geopolitical fragmentation of Environment, Social, and Governance (ESG) with a lack of mandatory international governance, calls for increased global cooperation and integration in overarching central conceptual and of action frameworks. As humanity faces critical environmental challenges—such as climate extremes and biodiversity loss and wars—the disparities between rich and poor become more evident and the planet displays its illness. Addressing these challenges requires collective social change, underpinned by shared operating systems, open-source models, and quality data. Humanity’s fragmented relationship
with nature highlights the need for a robust global governance system. As AI and ESG matters transcend national borders, there is a growing need for international
frameworks, such as the involvement of the International Court of Justice (ICJ) to resolve disputes and the rule of law, both at national and international levels to be interconnected, ensuring that legal frameworks complement each other. A shift toward “sust-AI-nability,” grounded in human reason, science- and fact-based, with values- and risk-based must coordinate cooperation, essential for managing global challenges, foster meaningful transformation, and advance the United Nations’ Sustainable Development Goals (SDGs).

Sustainable Development and Eradication of Poverty in Nigeria: Institutional Investors as a Primary Tool

Philip Osarobo Odiase, Opeyemi Yetunde Omotuyi — Wed, 26 Feb 2025 00:00:00 +0000

In response to the growing challenge of inequality around the world, the United Nations in 2015 adopted the 2030 agenda for sustainable development, a set of seventeen (17) sustainable development goals (SDGs). Chief amongst them is the goal to reduce inequalities among and within countries by reducing income inequalities: SDG1. To enable effective implementation of the goal, the United Nations calls for a global partnership, involving the public and private sectors. Placing its core emphasis on the Nigerian private sector, this article examines, from a doctrinal and analytical perspective, the strategic contributions institutional investors in Nigeria can make in combating inequality. The article identifies ‘Responsible Investment’, a growing international phenomenon, as one of the veritable
instruments that can be engaged in bridging the inequality gap prevalent in the country.

A Case for the Human Rights Approach to Climate Change: India

Luela Figueira — Wed, 26 Feb 2025 00:00:00 +0000

Climate change can no longer be viewed through the singular environmental lens; its impact on human rights must be considered to gain a comprehensive understanding of its consequences. Not only is climate change devastating the environment, it is depriving many of the enjoyment of their homes and basic human necessities. Consideration must be given to the potential benefits human rights law can offer in the fight against the consequences of climate change. Unfortunately, there appears to be hesitation about implementing the human rights approach. Some arguments have leaned in favour of the environmental approach due to concerns about the inability to assign accountability and the possibility that including the human rights approach will obscure the innate value of the environment. Hence, the objective of this article is to explore the importance and benefits of adopting a human rights approach to foster a balance between the two approaches. This article focuses on India which, due to its significant climatic disturbances, serves as an ideal example of the human rights violations resulting from climate change. The method used in the study underpinning this article was a doctrinal review of the relevant literature, including journal articles, legislation, and international legal documents. The debate of which approach is more effective may continue for years to come, with both sides presenting plausible arguments. However, the solely environmental approach has not proved to be the most effective. Implementing the human rights approach to climate change should be intentionally considered without nullifying the environmental approach.

Tourism at a Crossroads in the Age of Climate Change in Bojanala Platiunum District Municipality, Northwest South Africa: Crises of Adaptation and Mitigation

Lupwana Jean Jacques Kandala, Frank Azibuike Odimegwu — Wed, 26 Feb 2025 00:00:00 +0000

Climate change research is fast growing, with increasing information on the relationship
between climate change and tourism. Globally, tourism is sensitive to climate, meaning that the effects of climate change may change tourism flow and demand. Developing countries are those most affected by climate change. The consequence for tourism is disturbing as this sector contributes greatly to their economies. South African tourism depends on its environment to attract tourists; climatic change is a threat to the environment; therefore this is a major concern for South Africa. This article examines the perceptions of climate change threats within the tourism industry in Bojanala Platinum District Municipality in Northwest
Province by exploring how perceptions can influence behaviour and how the tourism industry responds to a changing climate. The Bojanala Platinum District Municipality is dependent on its local tourism sector to drive its economy. While both the tourists and tourism operators are aware of the threat of climate change and are concerned about its impacts, there are no or very few adaptations and mitigation measures being implemented. The lack of climate change planning to deal with these impacts is likely associated with perception. The tourism sector establishments consider it is the responsibility of the government to respond to climate change. This will have implications beyond Bonjanala Platinum District.

Exporting Environmental and Human Rights Abuses – Where Does Responsibility Lie

Jocelynne A. Scutt — Wed, 26 Feb 2025 00:00:00 +0000

‘First world’ countries export their industries, manufacturing and production to ‘developing’ countries, thereby exporting their carbon emissions and other elements detrimental to biodiversity and the environment. Products manufactured for United States, United Kingdom and European Union corporations are produced in China, Bangladesh, India, Mexico and countries of Africa and, increasingly, South America. This creates low-paid jobs to the benefit of corporate profits, whilst increasing pollution and associated negative environmental consequences as well as exploiting labour and promoting human rights abuses. Countries such as the US export nuclear and chemical waste, too, transferring their blight to other parts of the globe. In the 1980s the US sought to export nuclear waste to Johnson Atoll in the Pacific, however, protest (principally from Australian activists) sought to put an end to this proposal, albeit chemical waste continues to afflict Johnson Atoll and the Pacific, it island nations people, flora, fauna and land. In the 2020s, the risks created by nuclear waste export are being multiplied with the AUKUS agreement between Australia, the UK and the US, including the prospect of US nuclear waste being disposed of in Central Australia where facility for storing the waste with any possible safety measures is lacking due to the nature of the terrain. In the 1970s, nuclear testing in the Pacific was banned when Australia went to the International Court of Justice (ICJ). Now, the potential for and reality of environmental and human damage and degradation from the nuclear industry will be not on Australia’s doorstep, but effectively in the middle of the living room. What prospects are there for international law action in relation to the export of environmental damage and human rights abuse? What prospects for legal action to ensure that corporations exporting industry and outsourcing manufacturing and production contribute proportionately to environmental protections and an end to global warming and climate change? Furthermore, can legal action ensure the implementation of proper industrial conditions and payment for labour in countries taking on manufacture, production, outsourcing and supply of ‘first world’ goods.

Regenerative Urbanism: Enriching Places for People and the Planet

Nan Ellin — Wed, 26 Feb 2025 00:00:00 +0000

Regenerative urbanism enriches places for people and the planet by building upon existing strengths through meaningful community engagement. This article describes the process for achieving regenerative urbanism. This process may be applied to the United Nations’ Sustainable Development Goal 11: Sustainable Cities and Communities, and complements the methods described in Goal 17 – building global partnerships that mobilize and direct resources – for effectively realizing all the other goals.

Editorial

Jocelynne A. Scutt — Wed, 26 Feb 2025 00:00:00 +0000

CASE COMMENT – What is Dishonestly For? Mistaking the Normativity of an Honesty Claim

Dennis J. Baker — Wed, 26 Feb 2025 00:00:00 +0000

If the mental element of a crime required no more than objective fault, then objective mistakes as to the normative standard of honesty, impropriety etc would inculpate. There is a tension here between the doctrine that “ignorance of the criminal law is no excuse” and the constitutional right not to be subject to ex post facto law making. Because evaluations by fact finders about the normative wrongness of conduct (ie the medical operation was normatively well below the average norms of medical care or the conduct was dishonest against the norms of honesty) only become apparent after the fact the defendant is not able to search the published offences to find the actus reus of such an offence, which they must be able to do if the doctrine that ignorance of the criminal law is no excuse is to apply to them. In the case of mistakes about normative standards, when the mental element requires D to have a subjective state of mind in respect to the normative standard, the constitutional right against ex post facto law making takes precedence over the rule that ignorance of the criminal law is no excuse. It is because crimes of negligence such as gross negligence manslaughter do not require D to have subjective fault in relation to the norms that D has failed live up to, that D’s ignorance of those norms is considered to be ignorance of the criminal law per se. Under R v Ghosh what is honest is an objective normative question, but D can make a subjective mistake about the norms of honestly since those norms are not set out in law as is required by the doctrine that “ignorance of the criminal law is no excuse”. The latter doctrine does not excuse ignorance, but that is on the condition that the “law” was “discoverable” (i.e. existed in case law or statute and was online or otherwise published) had D attempted to know it in advance of doing the proscribed act.

CASE COMMENT – Tickle v Giggle – No laughing matter

Anna Kerr — Wed, 26 Feb 2025 00:00:00 +0000

At the time of writing, Supreme Courts in both the United Kingdom1 and United States2 are considering cases which raise the questions of ‘what is a woman’, and whether it is possible to change sex. This follows on from a US Presidential election in which Democratic Party support for extreme trans rights was a key distinguishing feature highlighted by the Trump campaign – a campaign which ultimately secured a landslide victory for the Republican Party. The Australian case of Tickle v Giggle is similarly destined to be remembered, not only for its amusing name, but also because of its significance in tackling these same questions. It is a case that records a truly extraordinary episode in the history of Australian jurisprudence, and for society generally. The Federal Court judgment in Tickle v Giggle holds that, for the purposes of discrimination law, sex is not confined to biology, is not binary in nature and can be changed – and that as a result, women must allow males who claim to be women into their previously safe spaces and services. The decision acknowledges Roxanne Tickle’s right to access the social media application, Giggle for Girls. Uncritically accepting caselaw recognising change of sex stretching back over 30 years, Bromwich J. effectively adopts the submissions of the Sex Discrimination Commissioner who appears amicus curiae. The court fails to accept the relevance of the expert and lay evidence filed on behalf of the Giggle team, or to reflect on the practical implications of this decision. Arguments as to the lawfulness of special measures to exclude men with the purpose of advancing women’s equality hold no sway as it is accepted by Bromwich J. that Tickle is a woman – and therefore cannot be found to have been discriminated against as a male. Instead, Tickle is found to have been discriminated against on the ground of gender identity. It is not established that the Giggle team knew of Tickle’s gender identity and as a result there is no finding of direct discrimination. Instead, the Court finds that imposing a condition that individuals should appear visibly female constitutes indirect discrimination on the ground of gender identity. The test as to reasonableness is not applied and various constitutional arguments also fail to gain traction.

CASE NOTE – Freedom From Religion – American Legion, et al v American Humanist Association, et al 588 US (2019)

Stephen Pitt-Walker — Wed, 26 Feb 2025 00:00:00 +0000

The case note, Freedom from Religion: American Legion, et al. v. American Humanist Association, et al. by Stephen Pitt-Walker, critiques the U.S. Supreme Court’s 2019 decision that upheld the presence of a Latin cross war memorial on public land, arguing it undermines the First Amendment’s establishment clause. The case revolved around whether the display of a religious symbol on government property violated the principle of government neutrality toward religion. The Court’s majority justified its decision through a “contextual historical justification,” framing the cross as a secular symbol of World War I remembrance rather than a Christian emblem.

Pitt-Walker contends that this reasoning abandons the long-established “neutrality principle,” which had guided previous court rulings to ensure governmental impartiality in religious matters. He argues that the decision unfairly favours the Christian (cultural) majority, discriminating against religious minorities and non-religious groups, ultimately eroding pluralistic values. The dissenting opinion by Justice Ruth Bader Ginsburg is discussed extensively, as she criticized the Court’s departure from neutrality and warned of the discriminatory consequences.

The case note locates the case within broader legal and philosophical frameworks, particularly exploring the tensions between rights theory and utilitarianism. Pitt-Walker proposes that the decision represents a form of “tyranny of the majority,” where the rights of minority groups are overshadowed by majoritarian interests. He concludes that the ruling sets a troubling precedent for future interpretations of the establishment clause, weakening constitutional protections for religious freedom in the U.S.

The Economic Perspective of the Law of International Institutions

Dr Grace Atsegwasi — Wed, 26 Feb 2025 00:00:00 +0000

This article reviews through an economic lense the law of international institutions,
which through managing the relationship among states is gradually leading to the emergence of a global regime with imperial tendencies. Nations express their interest in belonging to international institutions for the purpose of gaining socio-economic and political benefits achievable under a harmonised system of mutual dependence. Although this article does not seek to analyse whether the developing nations are better off belonging to international institutions, it nonetheless reviews the rationale behind developing nations maintaining their membership of international institutions despite the widening gap between the rich and the poor nations. The strategic positioning of the international institutions sways favourably towards indirectly aiding developed countries to continue dominating the developing nations. Exercise of power by international institutions bring to the fore that states - the less developed states in particular - are gradually losing their sovereignty and inherent power to superintend their domestic affairs without external influence. This accentuates the notion that international institutions are gradually assuming an imperial status, which has successfully replaced colonialism with neo-colonialism, to be favoured on the global market. The international legal movement is thus reflected in and by economic consequences unfavourable to developing nations.

Incarcerated Women’s Right to Health: Bridging the Gap Between Policy and Reality

Reem Alhasan — Wed, 26 Feb 2025 00:00:00 +0000

This article aims to investigate the impact of incarceration on women with regard to their right to health in the criminal justice system in the Middle East and North Africa (MENA). Despite the universal recognition of the right to health within detention facilities, it has received limited scholarly attention. There is a pressing need for research on this topic due to the identified gap in the literature concerning incarcerated women, with the available data being fragmented and insufficient in addressing the women offender’s right to health in detention settings in the region.

The findings of this article indicate that the use of detention facilities as a punitive measure has a significant detrimental impact on women, resulting in additional challenges within these environments. This results in gender-based disparities and differential inequalities of treatment that are systematically imposed upon women within the prison and criminal justice systems. Despite this evidence, incarcerated women are marginalised in discussions related to criminal justice system treatment. A significant absence of concrete steps towards reforming the criminal justice system remains.

Implementing Alternative Sentencing in the Criminal Justice System: Implications for Human Rights

Noora K. Alshaibani — Wed, 26 Feb 2025 00:00:00 +0000

Prisons operate with varying aims, including the infliction of punishment, individual
deterrence and general deterrence, even retribution or revenge. One aim is to enable offenders to become aware of their mistakes and be accepted back into the community. A problem with implementing this aim is, however, that imprisonment may generate greater capacity for offending in the convict, who may emerge from prison ‘worse’ than when entering it. This article briefly reviews the philosophy that lies behind alternatives to imprisonment by reference to a small slice of the literature and concludes that more research is required to draw firm conclusions about their efficacy. Research is needed on the domestic
level and internationally to determine how alternative punishments may result in upholding the human rights of offenders and improving outcomes for society as a whole.