the tort of conversion – by sarah green and john randall qc

Book reviews

The Tort of Conversion, by sarah green and john randall qc.Oxford: Hart Publishing, 2009, xxv + 224 + (bibliography + index) 14pp (£55hardback). ISBN 978-1-84113-833-6.

The tort of conversion is considered a highly technical and difficult area of law. LordHoffmann has described the tort as one that ‘exists to protect proprietary or possessoryrights in property; it is committed by an act inconsistent with those rights and it is atort of strict liability’.1 However, a precise definition of the tort of universal applicationaccording to Lord Nicholls of Birkenhead is ‘well nigh impossible’.2

Whilst the tort rarely features on undergraduate courses, is ignored by some torttextbooks3 and has been described as a ‘forgotten tort’,4 it is of great significance inpractice. It is the tort that you may wish to turn to if someone improperly sells yourcargo of cotton, or improperly refuses to return a machine that you have leased tothem, or if your car is stolen and you subsequently find it for sale on a garageforecourt.

Despite its significance, scholars, with notable exceptions, have widely ignored it.It is becoming traditional in articles dealing with the tort to lament the poor academicstate of the tort, and the lack of a critical mass of academic commentary on it.5 Thishas adversely affected the tort’s development.

Given this context Green and Randall’s thoughtful book is a most welcome addi-tion to conversion scholarship, and is the first modern English treatise on the tort.6 Theauthors have successfully negotiated a difficult path to ensure that the work will beof interest and use to both scholars and practitioners. The book aims to provide ascholarly resource to help facilitate a clear understanding of the tort, to examine keyaspects of conversion, and present them in a form which is both comprehensive andaccessible.7 It sets out to provide a statement of the tort’s fundamental elementssufficient to facilitate the identification of a conversion on any given set of facts,attempting Lord Nicholls’ ‘impossible’. It also sets out to provide an analysis of what

1. Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19, [2002]2 AC 883 at [129].2. Ibid, at [39].3. S Douglas ‘The nature of conversion’ (2009) 68(1) CLJ 198. Douglas gives the exampleof M Jones Textbook on Torts (Oxford: Oxford University Press, 8th edn, 2002).4. W Prosser ‘The nature of conversion’ (1957) 42 Cornell Law Quarterly 168.5. P Birks ‘Personal property: proprietary rights and remedies’ (2000) 11 KCLJ 1 at 2; seealso Douglas, above n 3.6. It is however not the first treatise on conversion published in England. The reviewer hasbeen able to locate two earlier treatises: A treatise of trover and conversion. Wherein the truemotion of that action is stated, with the differences from other actions of the like nature, etc(London: printed by the assigns of Richard & Edw Atkyns for R V & R B sold by Tho Cater,1696) and A treatise of trover and conversion; or, the law of actions on the case for torts andwrongs; wherein all the cases concerning such actions, are digested under their proper heads(London: printed by Eliz Nutt and R Gosling (assigns of E Sayer) for R Gosling, 2nd edn,1721), this was first published in 1720, under another title.7. The Tort of Conversion, p 1.

Legal Studies, Vol. 30 No. 3, September 2010, pp. 494–508DOI: 10.1111/j.1748-121X.2010.00171.x

© 2010 The Authors. Journal Compilation © 2010 The Society of Legal Scholars. Published by Blackwell Publishing,9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

may be the subject matter of a conversion, and to demonstrate that the House of Lordswas incorrect in OBG Ltd v Allan8 (OBG) in failing to extend conversion to intangibleproperty.

The treatise appropriately dedicates significant space9 to outlining the history ofconversion from its medieval ancestors onwards. In a work on the modern tort this isnot simply background. Conversion is a slave to its unusual history, and it is necessaryto have an overview of it in order to understand the tort’s idiosyncrasies. It also laysthe foundations for the book’s argument that in OBG their Lordships were incorrectin using the definition of ‘goods’ in the Torts (Interference with Goods) Act 1977,a non-codifying statute, to restrict the tort to tangible property.

Conversion according to the authors is neither complicated nor obscure, it protectsthe current superior possessory interest in personal property.10 This is in contrast toLord Hoffmann’s description of the tort, and the view expounded by Weir, thattrespass protects possession, whereas conversion protects ownership.11 Green andRandall compare the tort to the Roman law vindicatio, a proprietary action, and makereference to the Roman possessory interdicts. Whilst this is an ideal taxonomic deviceto map the place of conversion, the authors should be careful in assuming too muchknowledge of Roman law on the part of the reader. A comparison to a broader rangeof Roman law actions12 would, however, demonstrate that the tort is more complicatedthan perhaps the authors suggest. It is how English law protects property rights ingoods, as revealed by its remedies, and it can function in three different ways: as aloss-based tort, as a surrogate proprietary action and to reverse unjust enrichment.13

Chapter 3 attempts to define conversion. The authors criticise earlier attempts todefine the tort, which consist of outlining the instances in which the tort might occur.According to Green and Randall, conversion has three elements: ‘1. A claimant whohas superior possessory right; 2. A deprivation of the claimant’s full benefit of thatright; and 3. An assumption by the defendant of that right’.14 Deprivation of theclaimant’s full benefit is explained as ‘such that he is unable to exercise that right inits full spectrum’.15 To fulfil the third element the authors state that the defendant:16

‘must have assumed, in whole or in part, those possessory rights whichrightfully belong to the claimant; as long as he did so at some point, it does notmatter whether he is still exercising those rights at the time the action is brought,or for howsoever short a time he did so; neither does it matter whether he tookphysical possession of the assets at any point; what is important is whether hepurported to exercise possessory rights over the assets.’

8. [2007] UKHL 21, [2008] 1 AC 1, a case in which John Randall QC was leading counselfor OBG.9. 40 pages.10. The Tort of Conversion, p 46.11. T Weir An Introduction to Tort Law (Oxford: Oxford University Press, 2nd edn, 2006)p 165.12. See J Lee ‘Confusio: reference to Roman law in the House of Lords and the developmentof English private law’ (2009) 5 RLT 24 at 52–58.13. A Tettenborn ‘Conversion, tort and restitution’ in N Palmer and E McKendrick (eds)Interests in Goods (London: Informa, 2nd edn, 1998) p 825.14. The Tort of Conversion, p 75.15. Ibid, p 218; there are no other requirements.16. Ibid, p 76.

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© 2010 The Authors. Journal Compilation © 2010 The Society of Legal Scholars

Green and Randall accept that there is an exception to this definition where s 2(2) ofthe Torts (Interference with Goods) Act 1977 extends conversion to cover the situationwhere a bailee has allowed the goods bailed to him to be lost or destroyed in breachof his duty to his bailor.17

It is a conversion to destroy another’s goods deliberately without authority.18

However, the definition given encounters a problem when dealing with such forms ofconversion. To take an example: a bank robber fires a rocket-propelled grenade fromthe getaway car into the pursuing police car. The grenade enters the police car andexplodes, instantaneously killing the police driver and destroying the car. This is adeliberate and not a negligent destruction of goods, and is thus a conversion. In thiscase, the police have a superior possessory right over the car and there has been adeprivation of their full benefit of that right as the property has been destroyed.However, it would be artificial to say that the bank robber has assumed the superiorpossessory right. What the bank robber has done is denied the police of the benefitof their superior possessory right, rather than assumed it. In doing so, he hasassumed one of the incidents of ownership. Additionally, a person with a superiorpossessory right may not have the right to destroy the property, for example wherethey are a bailee, the property being owned by the bailor. Another recent alternativedefinition of conversion has been put forward by Douglas: ‘a conversion existswhenever a defendant intentionally exercises exclusive control over the claimant’schattel without his consent’.19 Douglas’ definition too would not cover this example.At no point can it be said that the bank robber exercised exclusive control over thepolice car. Until the grenade exploded, the police, through the police driver, were inexclusive control. At the point of explosion, the driver was killed and the car wasdestroyed.

Given that this is a conversion and the bank robber has not assumed the superiorpossessory right, but has rather assumed one of the incidents of ownership, thereviewer suggests that a definition of conversion which focuses on deprivation ratherthan assumption of the right is therefore to be preferred,20 as it better encapsulates thedestruction cases.

Chapter 4 deals with title to sue. To bring an action in conversion one must havepossession or an immediate right to possess the goods at the time of the conversion.Green and Randall disagree with the proposition set out in Clerk and Lindsell21 that animmediate right to possess needs to be a proprietary, as opposed to a contractual, right.The authors argue that a contractual right may be a sufficient basis for title to sue inconversion where it constitutes a contractual right to possession;22 they submit that the

17. Ibid, p 78.18. A Tettenborn ‘Wrongful interference with goods’ in A Dugdale and M Jones (eds) Clerkand Lindsell on Torts (London: Sweet and Maxwell, 19th edn, 2006) para 17-29.19. Douglas, above n 3, at 209.20. For example Dugdale and Jones, above n 18, para 17-07, gives a definition which requiresdeliberate dealing ‘in a manner inconsistent with another’s right whereby that other is deprivedof the use and possession of it’.21. Ibid, para 17-59.22. The Tort of Conversion, p 98; cf N Curwen ‘Title to sue in conversion’ (2004) Conv 308at 316–317, who argues that this would replace the fault-based liability in Lumley v Gye (1853)2 El & Bl 216 with strict liability: ‘There can be no justification for introducing additional strictliability into commercial dealings where it is extremely difficult to discover a third person’sinterest in goods’.

496 Legal Studies, Vol. 30 No. 3


rule about title to sue is very simple: ‘it attaches to the superior possessory right in theassets concerned’.23

Chapter 5 deals with the subject matter of conversion and builds upon SarahGreen’s previously published work.24 The authors’ discussion of digitised productsand intangibles is of particular note, and it is likely that this section of the book willbe influential. By making careful reference to the technology behind digitised prod-ucts and US case-law, the authors argue compellingly that digitised products25 may bethe subject of conversion. By setting out the technology behind digitised products, theauthors demonstrate that they have a corporeal form and are not in fact intangibles;they have a physical presence on their storage mechanism, the storage medium onwhich a program is loaded is physically different from the same storage mediumwhich contains different or no software.26

One of the major themes of the book, that OBG is wrong and conversion shouldapply to intangibles, is also developed here. The authors face a problem: if conversionis, as the authors state, a tort protecting possession, then it must be possible to possessan item for it to be the subject of a conversion.27 Chattels personal are divided intotwo types which are mutually exclusive: choses (things) in possession, and chosesin action.28 Choses in action by definition cannot be possessed, they are generallyconflated with intangibles.29 The authors consider this dichotomy unhelpful, theyargue that our assumptions of the concept of possession have been too narrow, andchoses in action have erroneously been taken to include all things intangible, ratherthan those which are incapable of possession.30 They state that the decision of themajority of the House of Lords in OBG is based on a narrow and static interpretationof possession and argue that intangible property can have the necessary indicia ofpossession.31

In order to make the book of greater assistance to the reader, an expanded treat-ment and separate section on defences to the tort would have been useful. As LordHoffmann in OBG noted, in that case there had been no discussion of the question ofwhether an extension of conversion would require a corresponding or greater degreeof protection for people acting in good faith;32 this issue could have been usefully dealtwith in this book along with a discussion of whether there should be any expansionto existing defences given the proposed expansion of the tort to intangibles. Anothersuggested addition would be to deal with limitation periods in conversion.

The authors rightfully note that conversion is not the only tort protecting personalproperty. Whilst the relationship between conversion and wrongful interference tortssuch as trespass is discussed, there is scope to expand this. The authors also thought-fully draw parallels between conversion and the tort of nuisance. Chapter 6 comparesconversion to the economic torts and is used to support the authors’ position thatconversion should apply to intangible property since it is argued that there is little

23. The Tort of Conversion, p 106.24. S Green ‘To have and to hold? Conversion and intangible property’ (2008) 71(1) MLR114; S Green ‘Can a digitised product be the subject of conversion’ [2006] LMCLQ 568.25. The Tort of Conversion, p 118, often referred to as software.26. Ibid, pp 118–119.27. Additionally, title to sue requires possession or an immediate right to possession.28. M Bridge Personal Property Law (Oxford: Oxford University Press, 3rd edn, 2002) p 3.29. Ibid, p 4.30. The Tort of Conversion, p 128.31. Ibid, p 132.32. At [97].

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prospect of the economic torts providing adequate protection to proprietary interestsin intangibles. Arguments could also have been developed here relating to Art 1 ofProtocol 1 of the European Convention for the Protection of Human Rights andFundamental Freedoms 1950 to support the position that conversion should extend tointangibles.

It is in dealing with remedies in ch 7 that the complexity of the tort is revealed.The reviewer would suggest that if the three different ways in which conversioncan operate were used as a framework, the solution to questions such as the role ofmitigation in conversion would become clearer.33

In concluding in ch 8, the authors state that conversion has a hybrid nature, andclassify the claim as a tort and the remedy as proprietary.34 They conclude that theprotection provided by conversion is as comprehensive as provided by comparablesystems, but that the subject matter should not be unduly restricted.35

The criticisms in this review should not detract from the achievements of the book.As the first modern sustained treatise on conversion it will no doubt be highlyinfluential upon its future development. The work is thought provoking, does not shyaway from controversies and is an academic challenge to those with conflictingconceptions of the tort. Hopefully, this will be the start of and a rallying call for thedevelopment of the mass of academic commentary whose lack Birks36 lamented.

phillip morgan37

Legal Practice and Cultural Diversity, edited by ralph grillo, roger ballard,alessandro ferrari, andré j hoekema, marcel maussen and prakash shah.Aldershot: Ashgate Publishing, 2009, xiv + 330 + (index) 15 pp (£65 hardback). ISBN978-0-7546-7547-1

Legal Practice and Cultural Diversity is a collection of essays examining varioussocio-legal implications of cultural diversity in contemporary European and NorthAmerican societies. A total of 16 contributions by anthropologists, political scientists,legal practitioners and legal scholars are brought together to discuss the complex issueof challenges to legal systems brought about by globalisation and international migra-tion, and how legal practice responds to the consequential diversification of societies.In addition, the individual essays offer a critical analysis of how law and legal practiceadapt to this changing context, and examine the benefits and shortcomings of differentnational approaches. The chapters are based on papers presented at a conference aspart of the IMISCOE Network on Excellence for International Migration, Integrationand Social Cohesion which was hosted at the Law School of Queen Mary University,London, in July 2007.

Prepared for a conference in 2007 and published in 2009, the issues dealt with inthe papers have everything but lost their salience. On the contrary, cultural diversity inlegal practice is of increasing importance which makes this book especially topicaland valuable for scholars, students and theorists, as well as for practitioners, policymakers and those who administer the application of law. The crucial role to be played

33. P Morgan ‘Mitigation and conversion’ [2010] LMCLQ 220.34. The Tort of Conversion, p 222.35. Ibid, p 217.36. Birks, above n 5.37. Lecturer, University of Southampton.



by well-informed academic discussion in this field has become evident in the light ofthe fiery reactions of the general public to the speech of the Archbishop of Canterbury,Rowan Williams, on civil and religious law in England.38 Similarly, reactions to aproposal by the Islamic Institute of Civil Justice to establish a Muslim ArbitrationTribunal in Ontario were generally ‘characterized by the construction and reproduc-tion of stereotypes, myths, mutual misunderstandings and dramatized fears or pan-ics’.39 The need to respond with this publication to the general Shari’a discussion inEurope and North America is also expressed through the fact that the editors chose toopen the introductory chapter with a quotation from the Archbishop of Canterbury’sspeech. Furthermore, although presumably prepared before Rowan Williams’s speechat the Royal Courts of Justice, 7 February 2008, about one third of the authors insertedsome reference to this text.

Before discussing the content of the various chapters, a few interesting conclusionscan already be drawn from the selection of contributions. First, the prominence ofreferences to the above-mentioned speech also indicates that current discourse onaccommodation of minority legal practices is at least considerably influenced, if notdominated, by Anglo-American politics and scholars. In other words, the discussionof this topic is mostly led within the context of and/or by scholars from an Anglo-American setting. This also is the case regarding the contributions to the book. Apartfrom the introductory chapters by the editors and the closing chapter by Ballard,which critically reflects on human rights as a vehicle for liberation, most chapterseither deal with case studies of particular issues in Great Britain, the USA or Canada,or base their more general conclusions on examples or case-law from these geographi-cal regions. Reflections on the Shari’a law debate are offered by Bader and Shah forCanada and Britain, respectively. Bakht deals with niqab in British court rooms,whilst Woodman looks more broadly at the English legal culture and the challengesposed by African customary law. Again for Canada, this time in Québec, Gaudreault-DesBiens gives a sociological account of the ‘reasonable accommodation’ debateand Renteln relies mostly on US case-law to draw her more general conclusions onthe influence of culture on the determination of damages. Two chapters by Sandbergand Knights analyse the position particularly of religious minorities in English lawand the role of Art 9 of the European Convention for the Protection of Human Rightsand Fundamental Freedoms 1950 (ECHR) in the domestic context. ContinentalEuropean thought in this book comes foremost from France in connection with theheadscarf affair, l’affaire du foulard, by Galembert, and the respective positions ofJews and Muslims in France by Cohen. A worthwhile exception to this trend is thecontribution by Hoekema on the Dutch judiciary and the question of whether itpluralises domestic law. Among those essays with a broader scope, Rohe’s account onShari’a in a European context deals with a wealth of examples from various jurisdic-tions. Menski, in turn, reminds us that diversity is not an exclusively ‘Western’,post-war phenomenon. His chapter on Indian secular pluralism is the only one focus-ing on a non-Western example of legal management of religious and cultural diversity.Menski seeks to learn lessons from India’s long-standing multiculturalism, which, ashe argues, can be of relevance to Europe.

38. R Williams Civil and Religious Law in England: A Religious Perspective Speech at theRoyal Courts of Justice, 7 February 2008, available at http://www.archbishopofcanterbury.org/1575.39. V Bader ‘Legal pluralism and differentiated morality: Shari’a in Ontario?’ in R Ballardet al (eds) Legal Practice and Cultural Diversity (Farnham: Ashgate Publishing, 2009) p 49.

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Secondly, an interesting but, at the same time, arguably problematic fact to beobserved is the dominant focus of recent scholarly work on issues regarding Islamiclaw or Muslim minorities.40 Returning to the point I made above on the need forwell-informed academic contribution to what has become a highly emotive discourse,it is, on the one hand, desirable to see more balanced accounts being produced onIslam in Europe. On the other hand, however, this shift of focus also risks stigmatisingMuslim communities and Muslim legal practices as inherently problematic and thusattracting most attention. Writing in the context of cultural diversity, the editors of thebook are themselves clearly aware of the potential danger of putting much weight onone particular minority when they say that:41

‘[a]lthough several contributors are concerned with the challenges to legalsystems which come from recent Muslim immigrant presence in Europe and NorthAmerica, it is important to remember that not all immigrant and minority ethnicsettlers of immigrant background are Muslim.’

This is an important point to make given that such caveats are often beingoverlooked.

The primary concern of many chapters is the question of accommodation, and hereespecially of Shari’a law principles, in domestic legal systems. They ask the questionas to what extent can or should legal systems take into account these legal principles.42

Sandberg speaks of broadly two ways of normatively or institutionally recognisingthem, whereby institutional recognition would entail the recognition of decisions ofspecified organs of some sort of ‘supplementary jurisdiction’ as legally binding.43

Bader, in turn, offers a discussion of four analytically different legal regimes and theirrelevance for vulnerable minorities. The stated aim of this collection of papers isto document and explore various modes of accommodation from the perspective ofsocial sciences. However, the reader nevertheless comes across normative argumentsin favour or against a particular model of accommodation. These normative stances, aslong as they are clearly distinguishable from scientific analysis – and they are – are ofgreat interest and informative value. Moreover, the advantage of this book is that itproposes concrete models of accommodation in a detailed manner. This is not to saythat a particular model is being favoured or advocated in this publication. Menski andRohe, for instance, differ in their final assessment of the Indian model. While Menskiargues that European legal systems have indeed something to learn from the Indianmodel, it is interesting to read that Rohe refers to India as a rather negative example.

Having said that the central concern lies with the issue of accommodation, one ofthe beauties of the book is that it introduces challenging and compelling new argu-ments to the debate of cultural diversity in legal practice. Many chapters force thereader to rethink preconditioned perceptions of certain contentious areas to do withcultural and religious diversity management. For example, in her discussion of thewearing of niqab in court rooms, Bakht finds that the inability of judges to makedeterminations of credibility if the person’s face is covered is hardly a justifiable

40. See also J Nielsen and L Christoffersen (eds) ‘Shari’a as discourse’ in Legal Traditionsand the Encounter with Europe (Farnham: Ashgate Publishing, 2010).41. Legal Practice and Cultural Diversity, p 4.42. Ibid, p 17.43. Several of the book’s contributions refer to this concept developed by A ShacharMulticultural Jurisdictions: Cultural Differences and Women’s rights (Cambridge: CambridgeUniversity Press, 2001).



argument given the growing evidence indicating the unreliability of demeanourevidence in general. The problem thus appears to be elsewhere. Bakht rightly con-cludes that:44

‘[w]omen who wear the niqab seem to challenge people’s core convictionsabout how one should pursue good life. Rather than reacting with suspicion, wemight be better served to question our own cultural assumptions. In the courtroom context, there are very few instances that would make it necessitous to seea woman’s face.’

This critique, especially when contrasted with the recent controversial proposalin France for a partial ban of the burqa,45 offers necessary alternative perspectives ina discourse that at times seems hijacked by one dominant voice.

Also in the French context, de Galembert reminds us that although Art 9 of theECHR appeared at the beginning to prevent the legislature from prohibiting the veil inschools, it eventually became one of the strongest legal justifications for the law of2004. Agreeing with Ballard, who emphasises the inescapably political character ofthe issue, it remains important to consider the close connection between law, politicalpower and societal context when discussing legal practice, the making of law and itsapplication in culturally diverse places. As a whole, the various chapters of the bookmanage very well to capture and communicate the fact that law, including supposedlyuniversal human rights law, is a social and cultural construct that depends to a largeextent on its domestic interpretation. What can be considered an overarching themeof the contributions to the book is that ‘these controversies also show how, at a givenmoment, the actors succeed in determining the meaning of the norm’.46 At this point,it is necessary to consider the present asymmetry of resources necessary for negoti-ating the meaning of such norms – like the mastery of the media and public discourse,legal competence and proximity to the political-administrative world – available tokey actors in the quest for accommodation.47 A sobering conclusion by de Galembertreads ‘[i]f the state has clearly lost its monopoly on the sources of the law, the factremains that it is in the national public space that the inseparably legal, political andmoral construction of human rights plays out’. In the light of this statement, it isunderstandable that Ballard remains highly sceptical of the allegedly exclusivelybeneficial impact of human rights regimes on the position of minorities in Europeanand North American societies and their legal systems: ‘. . . [i]t is idle to assume thatthe discourse of human rights is everywhere and always an instrument of liberation: itcan just as easily be deployed as a weapon of war’.48

In summary, this book raises topical and important issues on the future of legalpractice in increasingly culturally and religiously diverse societies. The editorsdeserve credit for the thoughtful arrangement of essays, the intended aim of which isto document and explore a wide range of aspects from the perspective of socialsciences. It is evident that normative theory influences each contribution. This is notnecessarily a bad thing as it exposes the reader to the key normative positions in thescholarly debate on the accommodation of minority legal practices. Beyond that,

44. Legal Practice and Cultural Diversity, pp 131–132.45. ‘France moves toward partial burqa ban’ CNN World 26 January 2010, available athttp://www.cnn.com/2010/WORLD/europe/01/26/france.burqa.ban/index.html.46. Legal Practice and Cultural Diversity, p 239.47. Ibid, pp 237–265.48. Ibid, p 328.

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many opinions and arguments on contentious topics relating to cultural diversitypresented in this book challenge our dearly held convictions and presumptions andthus offer welcomed food for thought.

lisa pilgram49

Criminal Liability for Non-Aggressive Death, edited by cmv clarkson and sallycunningham.Aldershot: Ashgate Publishing, 2008, xi + 248 + (index) 8pp (£60 hardback). ISBN978-0-7546-7334-7.

CMV Clarkson and Sally Cunningham present a new and distinctive criminal law textwhich investigates a number of controversies in the field of criminal homicide. In theirnew volume, entitled Criminal Liability for Non-Aggressive Death, Clarkson andCunningham present a number of diverse and enlightening perspectives about homi-cide law from a number of distinguished writers in the field. The bulk of the materialis drawn from papers presented at a unique homicide-related conference at the Uni-versity of Leicester in 2007, which was designed to address whether special homicideoffences – such as causing or allowing the death of a child or vulnerable adult; caus-ing death by careless driving; and corporate manslaughter – were really needed, orwhether such killings should be embraced within the general law of manslaughter.50

All of the chapters contained in this new volume place a unique emphasis on non-aggressive and non-intentional deaths, and whether killings in specific contexts – suchas when a person is engaged in non-aggressive conduct with no intention to causeharm – should be treated as specific or nominate offences or whether they shouldfall within the general offence of manslaughter. Falling just outside of the ambit ofthis text are killings that arise from an act intended to cause death or grievous bodilyharm; murder; manslaughter; infanticide; euthanasia (which was thought to be ‘toopolitically-charged and emotive’); or mercy killings.51

Jeremy Horder begins the first chapter with a theoretical account of the differencesbetween the ‘common law’ view of law – ‘comprised of accessibly formulated generalrules, applicable to all persons largely irrespective of the context in which they act’52

– and the regulatory approach, where offences are specially designed to meet theirregulatory context.53 The implication of this, Horder claims, is that offenders will bepunished in a way substantially more reflective of the need to secure their futurecompliance with regulations as opposed to mirroring the public feeling.54 Horderinstead prefers a system of criminal law in which common law and regulatoryapproaches are regarded as mutually reinforcing, rather than rival, claimants.55

However, Horder’s final thought is that the regulatory model need not always beimplemented; the recent corporate manslaughter offence illustrates a rather moreimaginative solution.56

49. School of Law, University of Edinburgh.50. Criminal Liability for Non-Aggressive Death, p 1.51. Ibid, pp 1–2.52. Ibid, p 12.53. Ibid, p 20.54. Ibid.55. Ibid, p 32.56. Ibid, p 34.



Victor Tadros follows this discussion with a chapter examining the scope ofmanslaughter; how many homicide offences we should have; and how these shouldbe distinguished. Tadros claims that: ‘considerations of equality will be important indetermining whether the scheme of homicide offences is coherent. Coherencedemands that the scheme of homicide law is justified when cases are treated com-paratively’.57 This would mean a comprehensive ‘reform from the bottom’, as Tadrossuggests.58 Tadros also touches upon distinguishing homicides according to the modeof killing,59 but a realistic view of the criminal law may reveal far too many varyingmodes of killing for any real coherence to materialise.60

RA Duff, in the next chapter, provides an interesting insight into luck and howit plays a part in the law of causing (or, ‘if lucky’, not causing) death when drivingdangerously or carelessly. Specific emphasis is given to the Road Traffic OffendersAct 1988.61 Duff focuses on the important issue of how and when the content,character and severity of an offender’s punishment could be affected by the actualoutcomes of the offender’s action. This includes ‘moral responses’ to luck in particularcontexts and how the criminal should reflect the different outcomes.62 Duff suggeststhat:63

‘. . . to see what difference the occurrence of harm might properly make tothe criminal law’s treatment of the endangerer, we should first note the way inwhich the criminal law of a liberal polity focuses primarily on criminal actions (oromissions), rather than on the motives or dispositions of character from whichthey flow, or on the perpetrator’s responses to them.’

Interestingly, Duff’s chapter also suggests that to punish an offender according to howhe responds after the commission of his offence may be venturing down a ratherdangerous road.64

CMV Clarkson kicks-off a string of five chapters relating to specific non-aggressive activities which may or may not justify the creation of specific homicideoffences. Clarkson begins with corporate manslaughter, arguing that when a deathoccurs at work, it is not enough simply to prosecute under health and safety laws.A special offence was thus required for two reasons:65

‘. . . the law opted for the notorious identification doctrine under which itis necessary to establish that the offence was committed by a person sufficientlysenior in the corporation [and] corporate activities do not involve attacks on theinterests of others. Harming people is not the object of corporate enterprises . . . wewant to hold corporations accountable, not simply for operating unsafe practices,but also for resultant harm.’

The upshot of this is that we have a new offence – the Corporate Manslaughter andCorporate Homicide Act 2007 – which enables the law to prosecute an organisation

57. Ibid, p 38.58. Ibid, p 42.59. Ibid, p 57.60. Ibid, p 57.61. Particularly Sch 2, as amended by the Road Safety Act 2006.62. Criminal Liability for Non-Aggressive Death, p 64.63. Ibid, p 73.64. Ibid, p 77.65. Ibid, pp 83 and 85.

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which, owing a duty of care, commits a gross breach of that duty.66 It is questionedin depth by Clarkson whether a civil duty of care should be implemented in thesesituations.67 Sally Cunningham continues the analysis with a chapter concerningvehicular homicide. A number of offences in this area have led to considerableconfusion, including the new offence of causing death by careless driving under theRoad Safety Act 2006;68 causing death by dangerous driving under the Road TrafficAct 1988;69 and causing death by careless driving whilst under the influence of drinkor drugs under the Road Traffic Act 1988.70 Cunningham examines the history ofvehicular offences in detail, which stem back to 1956. They were created becauseit was feared that many drivers who killed whilst driving badly escaped liabilityaltogether, as juries were reluctant to convict them of manslaughter.71 Since then, therehave been a string of special vehicular homicide offences to represent the differentcontexts of risk, and Cunningham argues that none of them stand up to scrutiny:72

‘. . . having a method of killing more readily at one’s disposal and realisingthat one could also cause death if one does not pay attention when driving . . . doesnot justify retaining a separate offence to cover such eventualities. It merelyperpetuates an undesirable attitude towards driving (we would not fear the resultsof our dangerous driving if we did not drive dangerously).’

Cunningham also focuses in depth on the fact that the needs of bereaved relatives mayplay a part in the development of this area of law (in fact, it may be ‘naïve’ to suggestotherwise),73 but it is suggested that Parliament could deal with these demands usingother processes in the criminal justice system.74

Jonathan Herring moves on to discuss the relatively new crime of causing orallowing the death of a child or vulnerable adult under s 5 of the Domestic Violence,Crime and Victims Act 2004. It is thought by Herring that this unique offence wasdesigned because of the evidential problems which arose when a child or vulnerableadult died whilst under the supervision of a carer, but it could not be proved that thecarer legally caused the death:75

‘. . . the difficulty is, as the Court of Appeal has recently acknowledged, childabuse cases often involve a complex factual matrix: the adults involved oftenlie; the expert evidence can be equivocal; and the victims are unable to provideaccounts of what happened.’

This new offence has numerous interpretive and controversial problems. The difficultyin relation to omissions-based liability is that it is difficult to show that at no point intime could the defendant not have helped the victim. One might, for example, bewilling to accept that a battered woman at the time of the killing was not responsiblefor her failure to intervene, but to be persuaded that there was never a point in time

66. See s 1 of the Corporate Manslaughter and Corporate Homicide Act 2007.67. Criminal Liability for Non-Aggressive Death, p 92.68. Section 20, inserting s 2B into the Road Traffic Act 1988.69. Section 1 of the Road Traffic Act 1988.70. Section 3A of the Road Traffic Act 1988.71. Criminal Liability for Non-Aggressive Death, p 104.72. Ibid, p 114.73. Ibid, p 116.74. Ibid, p 122.75. Ibid, p 126.



earlier when she should have intervened will prove much harder.76 In addition, the newlaw may lead to unfair prosecutions; for example the defendant may have been avictim of domestic violence at the relevant time.77 Perhaps the laws surrounding childneglect could have simply been reformed, as Herring suggests.78

Following on from this discussion, Oliver Quick puts forward a rather novelargument in his chapter, entitled ‘Medical killing: need for a specific offence?’, thatmembers of the medical profession do not deserve to fall within the current scope ofhomicide law at all, and that the law should be reformed in a way that would reflectthe complexity of their job and the inherent risks involved:79

‘. . . the issue most relevant to our present concern is whether the offence ofgross negligence manslaughter is specific and sensitive enough to reflect differentlevels of culpability for “crime” committed in different contexts. Are medical casessufficiently different to warrant labelling and prosecuting as a separate crime?What would be the merits and de-merits of framing special criminal law forhealthcare professionals?’

The main tension, argues Quick, is between the need for fair labelling of offencesand offenders against the risk of over-specificity and thus over-criminalisation, a veryreal risk in the fast moving world of criminal justice law and policy.80 Quick suggeststhat medical professionals should find liability under an alternative form of subjec-tive recklessness manslaughter, as opposed to the current offence of gross negligencemanslaughter: ‘perhaps the term gross negligence is really just recklessness in dis-guise?’81 This change could allow blameworthy choices to be exposed and prosecuted,rather than the criminal justice system running after momentary slips which are aninevitable part of the profession.82 It could also see a decrease in individual prosecu-tions and it may result in decisions not to proceed with dubious cases on the cusp ofliability.83

Finally, William Wilson completes the main bulk of the book with his chapterconcerning drug-induced homicide in light of Kennedy84 and discusses the popularissue of whether a drug supplier who supplies drugs to another, who then dies afterconsuming the drugs, should be guilty of manslaughter, or whether a new specificoffence should be created:85

‘. . . problematic still are those cases where there is some further actof involvement, or encouragement, in the lethal overdose falling short of actualinjection, such as preparing the heroin mixture and handing it to the injecting user.’

Wilson controversially suggests that such suppliers should not be liable for eithermanslaughter or a special offence, and instead proposes that such individuals shouldbe treated more as victims for their addiction as opposed to criminal killers:86

76. Ibid, p 136.77. Ibid, pp 145–146.78. Ibid, pp 152–153.79. Ibid, p 158.80. Ibid.81. Ibid, p 163.82. Ibid, pp 159–160.83. Ibid, p 165.84. [2007] UKHL 38, [2008] 1 AC 269.85. Criminal Liability for Non-Aggressive Death, p 180.86. Ibid, p 196.

Book reviews 505


‘not only are the physical risks associated with the consumption of illegaldrugs relatively small, but by contrast with alcohol and tobacco consumption, theytend to concern not so much the nature of the drug but the absence of qualitycontrol . . . there is little wrong with the law relating to drug-induced killings whichthe decriminalisation of drug possession and supply would not put right.’

Wilson’s theory would thus allow suppliers of drugs to face prosecution underthe laws of supply only, even if their supply led to the death of another, and receiveadditional rehabilitation for their addiction. In his discussion, Wilson makes someinteresting comparisons with US law.

In the final two hidden chapters, Stanley Yeo and Andrew Ashworth discussAustralia’s perspective of special homicide offences (this chapter is particularlyinformative and comparative), and whether the manslaughter family of offences aregeneric or nominate offences.

The overall volume concludes with the feeling that the law of manslaughter, inits current state, exists merely as a ‘catch-all’ category in homicide, and there is anunderlying difficulty in punishing those who are responsible for ‘non-aggressive’deaths. The volume provides some unique views of the criminal law from many anglesand many diverse schools of thought, and this is done clearly, concisely and withconsideration for student readers and professional researchers alike. This volume is awelcome addition to the existing literature in this field.

lisa cherkassky87

International Law Volumes I and II, The International Library of Essays in Law andLegal Theory, Second Series, edited by malcolm evans and patrick capps.Aldershot: Ashgate Publishing, 2009, xvii + 479 (vol I) and vii + 694 + (name index)4pp (vol II) (£265 hardback). ISBN 978-0-7546-2736-4.

One of the abiding ironies of modern academic scholarship seems to be that the moreexpansive a field of academic endeavour becomes, both in its thematic coverage andits audience base, the less the availability of certain types of materials that are crucialto the pursuit of that discipline. This is mostly true of the discipline of publicinternational law (PIL).

There is no doubt that the last two decades or so have witnessed a surge in thepopularity of PIL, so much so that one may not be far from the truth to assert that itis perhaps the fastest growing of any field of legal studies. Yet, the somewhat phe-nomenal growth of PIL has not been matched by an equally steady rise in certain typesof works which offer PIL scholars the opportunity of having, at their beck and call,easy reference materials. Within PIL, two such notorious gaps exist in respect of‘cases and materials’ literature (in the UK, we still are mostly indebted to DJ Harrisand Dixon and McCorquodale’s contributions) and essay compilations on the generaltheme of PIL.

To that extent, International Law (vols I and II), edited by Malcolm Evans andPatrick Capps, is a salubrious attempt to fill the gap in respect of essays in interna-tional law. The two volumes which, put together, run into 1173 pages, is an assem-blage of 25 of some of the best-known publications on various topics.

In terms of substance, the two volumes cover five topics, a limited number onemight say, in a field as rich and diverse as PIL. Whereas vol I, broken into two parts,

87. Lecturer in Law, Bradford School of Management.



covers ‘the nature of international law’ and ‘the sources of international law’, vol II,which is divided into three parts, focuses on personality, jurisdiction and immunity,and the future of international law.

Although a reader may find this rather limited coverage deeply frustrating, thatfrustration is assuaged by the tantalising richness of the materials assembled in thevolumes. In a sense, this work presents international legal scholars with a one-stop‘library’ of some of the most cited and, in some respects we may say, ‘classical’literature on their subjects. For in all certainty, the fact that Michael Akehurst’sseminal article on ‘Jurisdiction in international law’ was published almost 40 yearsago has not diminished, in any significant way, the pride of place and the near iconicstatus that piece occupies among its peers. Nor are there many better reads today on‘The criteria of statehood in international law’ than James Crawford’s of that title.Indeed, the self-justifying sagacity of a Hans Kelsen’s or a Hersch Lauterpacht’scontribution to any academic debate in law almost relieves one of the need to seekeulogies, but for the fact that these species of writings are fast becoming a rarity. Asthe editors of the works rightly pointed out, ‘writing of this nature appears to beincreasingly uncommon’, a situation they opined was ‘due to the increasingly frag-mented nature of international law, from its being compartmentalized into a series ofspecialism’.88

The topics focused on by the works assembled in these two volumes are undoub-tedly some of the most fundamental in PIL and, to a reasonable extent, are thefoundation for several other issues that today assail international legal studies. Everyinternational legal scholar, regardless of generational or civilisational distinction,appreciates discourse on the nature and sources of international law, as indeed they doof jurisdiction and the future of international law.

It is possible, however, for one easily to be circumspect, if not outright cynical,about the value such works as that edited by Evans and Capps bring to the disciplineof international law on many fronts. Aside from the apparent dividend of physicallybringing together the various works in a single, multi-volume publication (handiness),it becomes rather difficult to find apparent justifications. There is no commentary onindividual articles – and perhaps, in fairness to the editors, there was no reason toprovide any for such well-received and popular materials.

Without attempting to rewrite the works, some commentaries would have beenextremely useful, especially with regard to the works of Akehurst, even if suchexplanation does no more than suggest new case-laws such that the erudite scholarwould have undoubtedly dealt with in a reissuance of the article as, indeed, JamesCrawford did with a second edition of his book on statehood. Nevertheless, we musttemper such desirability with the objective that publishing houses seek for such seriesas Ashgate’s International Library of Essays in Law and Legal Theory. As the SeriesEditor Tom Cambell succinctly noted, this new ‘series follow the successful pattern ofreproducing entire essays with the original page numbers as an aid to comprehensiveresearch and accurate reference’. Thus, if we lower sight and evaluate InternationalLaw solely by reference to this objective, the book does fulfil its primary goal: to serveas an aid to research.

Nonetheless, there are some difficulties that one still needs to grapple with, nomatter how generous one interprets the purpose of the book. For while one cannotlegitimately query the subjectivity of the selection process for which no one should

88. International Law vol I, p vi.

Book reviews 507


expect, and in respect of which Evans and Capp ‘make no apologies’ whatsoever,89

readers surely are at liberty to ponder whether the addition of certain not-so-welloutstanding materials to the volumes does not dilute the ebullience of such eminentworks as already referred.

One finds it equally curious that the finest quality materials judged by the editorscame exclusively from journals published in the West. Clearly, the editors have a biastowards Europe-based international law journals as the sources for selecting thecandidates for the volume. Remove the American Journal of International Law,European Journal of International Law, the British Yearbook of International Lawand International Comparative Law Quarterly, and the library empties. There was noteven a genuflection towards anything else. In fact, so much is the profusion of the EJILin particular that anyone who, for instance, thinks that the section on ‘The future ofinternational law’ in vol II is the ‘future’, as European and American internationallawyers perceive it, would not be too far from the truth. While the point being madehere is not that the work should have drawn from every civilisation, or deferred tosome affirmative action, one is simply hard-pressed to understand the rationale for thevery limited geographical bank from which the editors drew in a world of pluralisticlegal systems. It certainly would be almost incredulous, to most international lawyersperhaps, that from Australia to China, from India to South Africa, there are nopublications in journals published in those jurisdictions worthy of the candidacy ofthe work.

Whilst we must remind ourselves of the absolute, unapologetic right of the editorsto draw from wherever they please, the rather narrow lens through which internationallaw seems to have been viewed in this book somewhat reinforces the idea thatinternational law is a creation of the West, which later percolated to the ‘periphery’,as contributions from the rest of the world to international law are often referred.Hardly would such an outdated vision of the international law disturb in an age wheninternational law was considered a citizen only of ‘civilized nations’, that is to say,Western nations in particular. But if this heretical assertion could be forgiven asbelonging to the colonial past, it certainly has no place in today’s world of interna-tional law.

Moreover, the limiting (consciously or inadvertently) of the selected materials inInternational Law mainly to journals published in North American and Europe alsoshould be a source of concern to academics in the UK, especially those who partici-pate in the Research Excellence Framework. Does this attitude towards selectingmaterials not reinforce the prejudice, not unpopular among the UK academic estab-lishment, that unless your works are published in certain journals, they will not beadjudged to have attained the highest standard?

PIL is a child of the world and, to state the obvious, thrives most when it ventilatesacross the globe. It is unfortunate nowadays when one reads books on internationalhuman rights which draw almost all of their cases and materials from the West; but itseems even more unfortunate when essay compilations on PIL amplify this approach.

Be that as it may, there is no doubt that International Law is surely a commendablefirst step towards filling what is becoming a really irritating gap in international lawliterature.

ademola abass90

89. Ibid, p vi.90. Professor of International Law and Organisations, Brunel Law School.



the tort of conversion – by sarah green and john randall qc

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