In R. v. North and East Devon HA ex p. Coughlan the Court of Appeal significantly clarified the doctrine of substantive legitimate expectations. The facts of the case are familiar. The applicant had been very severely disabled in a road traffic accident in 1971 and was subsequently placed in the care of a local area health authority. In 1993 she and seven other seriously disabled patients were moved by the health authority with their consent to a new facility at Mardon House after receiving an assurance that they could live there “for as long as they chose”. Following a public consultation in 1998, the health authority decided to close Mardon House and transfer the applicant to a local authority home.

Copyright law is in crisis. The law, as it currently stands, is considered by some to be technologically challenged, discriminatory, and overly complex; others wonder about its ability to address effectively the many challenges thrown up by the digital and internet revolutions. Both the US and the EU have responded to such concerns in the guise of the American Digital Millennium Copyright Act and the new European Copyright Directive respectively. This time of unprecedented technological development demands a necessary reappraisal of the copyright regime; we need to ask, what should copyright law do? Should its primary concern lie with the author (the copyright owner) or with society (the copyright user)? Traditional analyses suggest that at common law the author had a natural right to print and reprint his work, but that this common law right was impeached with the passing of the Statute of Anne of 1709 in the interests of the encouragement of learning and the dissemination of ideas. In short, the pre-existing common law rights of the author were impinged upon in the interests of society. This reading of the origins of the nature of copyright first took root with the seminal decision of Donaldson v. Becket (1774). It is this orthodox analysis that the author seeks to challenge.

Recent decisions in the courts have encouraged discussion of the extent to which the common law does or should place a high or higher value on political expression. Some scholars argue for a more explicit recognition of the high value of political speech, and would seek, for example, to “constitutionalise” defamation laws. Others have adopted a more sceptical attitude to the desirability of importing American approaches to freedom of expression generally or to the privileging of political speech as a category.

Gain-Based remedies are now often characterised as either “restitution” or “disgorgement”. Restitution is the giving back of wealth received by a defendant from a claimant, which must be given back or restored because it amounts to an unjust enrichment at the claimant’s expense. Disgorgement is the giving up to a claimant of a gain made by a defendant, as a consequence of a wrongdoing committed against the claimant, but received from a third party. This dichotomy presents a difficult problem: what happens if a defendant, who is liable only in unjust enrichment and not in wrongdoing, makes a gain causally related to the unjust enrichment but by receipt from a third party? An answer to this question has important consequences for the coherence of an independent claim in unjust enrichment.

In a judgment awaited with great apprehension, the House of Lords on 29 November 2001 refused Diane Pretty’s application to compel the Director of Public Prosecutions to give her and her husband prior assurance that her husband would not be prosecuted under section 2(1) of the Suicide Act 1961, were he to help her to commit suicide some time in the not too distant future, when she would clearly have communicated her wish to quit this world, but would, on account of her physical condition, be unable to accomplish her objective without the assistance of another person. The European Court of Human Rights subsequently confirmed that the exceptionless prohibition of assisted suicide, even in so far as it indirectly prevented a person in Mrs. Pretty’s physical predicament from committing suicide at all, was compatible with the United Kingdom’s obligations towards Mrs. Pretty under the European Convention on Human Rights. At the same time, there are important discrepancies between the analysis of the human rights issues in the House of Lords and the reasoning of the European Court of Human Rights. Had their Lordships realised that the scope of protection afforded to personal autonomy under the Convention includes the making of autonomous choices even in matters of life and death, and that the particularly burdensome effects of the domestic law on persons like Mrs. Pretty stood in need of separate and particular justification under Article 14, the outcome of the case might have been a different one.