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The work of the late Professor Peter Birks and of Professor Andrew Burrows QC has had a profound impact on the development by the courts of a new branch of English private law, namely the law of unjust enrichment (sometimes called the law of restitution). This branch was first officially recognised by the highest court in the United Kingdom in 1991 and it is now widely viewed as being an important and independent part of the law as is, for example, the law of contract or the law of tort. Every citizen and institution is potentially affected by it, most obviously where payments are made by mistake. The particular contribution of Birks' and Burrows' research has been in assisting the courts to identify, clarify, and refine the leading principles of this new branch of the law. Their work has made what was previously obscure and under-developed, intelligible and accessible, thereby enhancing the quality of decisions made by the courts and offering guidance to counsel. Their doctrinal and theoretical writings on this subject are among the works most cited in the English courts. As the Times put it, `a mere footnote in a Birks article proved to be the subject of several paragraphs of reasoning in the speeches of the law lords.'
In many aspects of family law, courts are required to take account of `children's welfare'. The courts have struggled with what this includes and, in an important case, turned to research on children's welfare by Professor Jonathan Herring for a better understanding of that concept. In Re G (Children) [2012], the Court of Appeal ruled on a dispute between the mother and father of five children over their residence, religion and education. Munby LJ discussed the concept of welfare of children in detail, citing work by Herring with his Oxford colleague, Charles Foster, on the issue. [R2]. Drawing on this research, the court held that it is only by considering the child's network of relationships that their well-being can be properly determined. This ruling changed the law governing important family interests throughout England and Wales.
Professor John Finnis has been engaged in a programme of research in legal and constitutional theory. His work on the legal and political responsibilities of UK ministers when acting to affect the law of a British Overseas Territory played a pivotal role in the decision of the House of Lords to reverse the Court of Appeal`s interpretation of the Colonial Laws Validity Act 1865 (CVLA). The Court of Appeal had held that UK ministers could not properly legislate in the interests of the UK as a whole (including its dependent territories), but only in the interests of the particular territory itself. Relying on Finnis`s arguments, the House of Lords changed that precept. Finnis`s work also persuaded members of the House of Lords to express doubts about a central holding of an earlier decision, which concerned the capacity in which ministers acted in legislating in dependent territories. Finnis`s arguments have been relied on in legal argument in later cases, and have been recognised and reaffirmed in subsequent Court of Appeal and Supreme Court judgments. In this way, they have helped to change fundamental constitutional principles affecting not only all citizens in the UK, but also those in its Overseas Territories around the world.
This research has made a sustained and continuing impact on the development and application of the substantive criminal law, including mens rea and general defences, and especially in the areas of complicity and homicide, in terms of
i) development of the law by the appellate courts;
ii) application of the law by practitioners; and
iii) government policy as to the reform of the law of murder and complicity.
Sheffield research on the role of Ombudsmen within the Administrative Justice (AJ) system has: (1) changed the approaches of Parliamentary and Local Government Ombudsmen in the UK with a view to improving their performance; (2) influenced government decision making on the reform of Ombudsman schemes in the UK and in Gibraltar; (3) contributed to forming opinions among parliamentary decision makers, via the Parliamentary Select Committee system; and (4) shaped debate and policy recommendations on administrative justice remedies within the Law Commission. The research has thereby addressed the challenges to the AJ system posed by the economic downturn and government austerity measures which carry the risk of deterioration in the quality of services available to citizens for the redress of grievances.
Much has been written about mental condition defences such as insanity and diminished responsibility together with the cognate doctrine of unfitness to plead. However, most of this work has been doctrinal rather than empirical. This case study has developed a sustained and continuing understanding of how certain mental condition defences operate in practice, primarily through empirical analysis. R.D. Mackay's empirical studies of both the insanity defence and unfitness to plead and his studies of diminished responsibility, provocation and infanticide have been used by and have influenced law reform bodies, legislators, policy development and legal analysis.
Judith Freedman's research on tax law and policy helped shape anti-avoidance provisions of the Finance Act 2013. Freedman had proposed a statutory general anti-avoidance principle combined with a statutorily created administrative framework to limit the exercise of discretion by revenue authorities, thus reducing manipulation whilst achieving reasonable certainty in UK tax law. This research directly informed debates among tax professionals, officials and the public. The 2011 Aaronson study group (of which Freedman was a member), commissioned by the Exchequer Secretary, produced proposals embodying her approach. The government acted on these proposals in the Finance Act 2013, introducing into UK law an overriding statutory principle, to which other tax legislation is subject, together with an administrative framework (the General Anti- Abuse Rule (GAAR) Advisory Panel) in which consensus around the concept of tax avoidance can be pursued between the taxpaying community and revenue authorities. The new anti-avoidance approach informed via Freedman's research is now law throughout the UK, affecting every taxpayer.
Two particular examples of impact on legislative change and legal practice are described: impact on the parliamentary process and impact on mental health practice and procedure. The first example describes contribution to debate during the parliamentary process for the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill and contribution to the decision to reject rushed emergency legislation. The research team's response to the consultation by the Justice 2 Committee was widely referred to by organisational representatives and individuals in the debates. The second example focuses on the impact from a key text, which has been used by both sides and judges in Sheriff Court appeals. The impact here is in its verifiable effect on the practice of law in courts and in the making of legal determinations.
Professor Adrian Keane's research relates to the law of criminal evidence, that body of law which regulates the means by which facts can be proved in criminal trials. His publications on the subject have effected change and benefited the awareness, capacity, performance and understanding of the subject on the part of:
(i) the judiciary in the UK and internationally, in reaching decisions at both first instance and at appellate level; and in giving directions to juries on evidential issues that are as clear and consistent as possible
(ii) legal practitioners
(iii) law academics and students (an impact that extends significantly beyond the submitting higher education institution)
(iv) legislators in the People's Republic of China.
The most significant impact stems from participation in a project in Beijing that led directly to a revised Criminal Procedure Law that has improved the quality of the administration of Chinese criminal justice. Specifically, it has rendered criminal trials fairer to the accused and reduced the potential for miscarriages of justice, especially in relation to offences carrying the death penalty.
In 2010 the Ministry of Justice formally accepted recommendations by the Law Commission to introduce a new non-statutory rule of disclosure for trustee exemption clauses in England and Wales. Newcastle research had a direct impact upon the development of the law on trustee exemption clauses. In 2002 Dunn successfully tendered to undertake research on trustee exemption clauses in England and Wales on behalf of the Law Commission. Dunn's research was published by the Law Commission as a separate and distinct chapter of its consultation paper on trustee exemption clauses. The research (alongside consultation responses) influenced the Law Commission's recommendation that a non-statutory rule of disclosure be introduced into the law of England and Wales. This recommendation was accepted by the Government in 2010 and has been implemented by the trust industry.