As Sir Richard Eggleston has justly observed, ‘The whole subject of character evidence in criminal cases is complex and difficult and much has been written about it. Although this rings true for section l(f) of the Criminal Evidence Act 1898, the remoter areas of that provision still remain comparatively unexplored. This paper will concentrate upon the abnormal operation of sub-provisos (ii) and (iii).

Section 1 (f) provides that, if he elects to give evidence, an accused shall neither beasked nor required to answer ‘any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character.’ The effect of this general prohibition is, in Cardozo CJ’s words, that ‘in a very real sense a defendant starts his life afresh when he stands before a jury.

Failure of medical advice by a medical practitioner can vitiate a patient’s consent to treatment giving rise to battery and it can also constitute a breach of the medical practitioner’s duty to inform bringing in negligence. This failure to inform pertains to the two torts of battery and negligence. What then is the distinction between medical trespass and medical negligence? The English cases from Chatterton v Gerson in 1981 to the recent leading case of Sidaway v Bethlem Royal Hospital Governors and Others have drawn a distinction. The distinction between the two torts is useful for the purposes of classification and application of tortious liability and is also necessary for the purpose of establishing the different functions of the two torts. Unfortunately, the distinction drawn is inappropriate. The article will first examine the distinction drawn by the cases between the two torts in this area of failure of medical advice; then it will discuss the difficulties in the distinction employed; and, finally, it will suggest a more appropriate relationship between medical trespass and negligence.

Until recently claims for damages by patients against their doctors were rare in England. Patients who did pursue such claims often found scant sympathy from Her Majesty's judges. The clinical judgment of the medical practitioner was accorded something very like immunity from suit. Since 1980 the pace of medical litigation has quickened dramatically. Patients seem less and less willing to accept without complaint the results of unsuccessful or injurious treatment. They are more and more inclined to question their doctor's judgment. Medical litigation and scrutiny of medical decision making is highly newsworthy in 1987. The practice of medical litigation looks set to become profitable for lawyers. To the cynical oberver all this might look like good news for lawyers and bad news for doctors.

Why does the mens rea of attempt require intention even though some lesser state of mind will suffice for the completed offence? What is the meaning of ‘intention’ in this context? Is intention required for all elements of the crime attempted or only for some? Can one draw a distinction between circumstances and consequences in this connection? Can crimes of negligence or of strict liability be attempted? Why do ‘impossiblc’ attempts cause such difficulty? Is there any meaningful distinction to be drawn between Anderton v Ryan and Shivpuri, or was Shivpuri the last word on the matter? It would be presumptuous to suggest that this article was the answer to all these questions: nevertheless it is suggested that light can be thrown on them by standing back and looking at the nature of a criminal attempt. The key to these and other puzzles, it is suggested, can be found in two concepts, the analysis of attempt as a crime with a missing element, and the notion ofintention as distinct from knowledge or foresight of consequences as stressed in Moloney and more recently by the House of Lords in Hancock and Shankland.

The immediate problem of Plato’s prisoners in the cave, it will be recalled, was understanding what was going on in the cave (for they could see only the shadows on the wall). In our contention, the situation of those who try to operate consistently within the constraints imposed by the traditional exposition of contract (sometimes pejoratively referred to as the ‘black-letter’ approach), is somewhat akin to that of Plato’s prisoners. They may perceive shadows, but they are unable to interpret them from the confines of their position. The purpose of this article is to sketch a framework for the law of contract, which we hope will assist in this interpretive exercise.