Phipson on Evidence. 14th edn. Edited by M. N. Howard, Peter Crane and Daniel A. Hochberg. [London: Sweet & Maxwell. 1990. 1,239 pp. ISBN 0-421-38590-1. £135]

Abstract

International and Comparative Law Quarterly [VOL. 41 latter, while eagerly awaited by the shipping community, contained no great legal surprises; the former, however, has proved a fertile source of debate, as the author amply demonstrates. At a time when the full implications of The "Laura Prima" have yet to be established. The "Kyzikos" now shows that a distinction must be firmly drawn between "availability" for the purposes of a WIBON (whether in berth or not) clause on the one hand and a "reachable on arrival" provision on the other. The section on transfer of title (considered in the context of the liability of parties other than the charterer for demurrage) is perhaps the weakest; the comments on the Gardano case are questionable in the light of The "Albazero" and the whole section needs revision following the recent trio of Court of Appeal decisions in The "Delfini", The "Aramis", and The "Filioira Legacy". Nonetheless, this is a very minor niggle about an otherwise first-class and authoritative textbook on a specialist area of shipping law. It is undoubtedly essential reading for anyone in the shipping field. In a different style altogether is The Guide to the "Boxlime" Charter Party. This is the first coherent attempt to grapple with the impact of containerisation on traditional allocations of responsibilities between owner and charterer in a time charter context; no longer is it sufficient merely to rely on wholesale amendments to the New York Produce Exchange form. Nominally the fruits of a BIMCO working party, the Boxtime charter is, however, inspired by and very largely based on the work of the author. The purpose-built form comes in three parts: Part I is in box format familiar from other BIMCO forms; Part II contains detailed standard provisions; Part HI presents technical data in a standard format. The bulk of the Guide comprises a commentary on each of the standard clauses. Their rationale and wordings are explained, together with how they are intended to work in practice. Equally illuminating is the discussion-of the provisions excluded from the final version. Helpful practical hints on the use of the form are included, as well as suggestions for additional clauses and modifications. The primary aim of the author was to achieve clarity, simplicity and consistency of language, while maintaining an adequate balance between the interests of owner and charterer. Unnecessary duplication has been eliminated and explicit provision made for most of the situations which have proved troublesome in the past, such as responsibility for stowing and securing. A novel feature is the introduction of a time limit for claims against the charterer, and not even the broken are forgotten: the form contains an indemnity against loss of commission due to cancellation or breach. Although speculation as to its future is premature, the form is unlikely to need extensive judicial consideration. If so, its author's efforts will have been well rewarded. This is an excellent practical guide to a very worthwhile undertaking. I...

Exclusion of evidence in times of mass surveillance. In search of a principled approach to exclusion of illegally obtained evidence in criminal cases in the European Union

“…It seems proponents of the principle would counter this criticism by re-emphasising the strengths of the principle. While the principle may lack clarity, it at least allows courts to resolve the tension between competing imperatives in determining whether to admit illegally obtained evidence in a way that none of the traditional principles do (Dennis, 2020: 50–51, 109; Duff, 2004: 172), and requires courts to make their reasoning in this regard transparent for the public (Zuckerman, 1989: 350).…”

“…It has also argued that the choice for a particular rationale is not without consequences; a change of perspective will affect how exclusionary rules are applied and which factors are relevant in the exercise of discretion. While the reliability principle, disciplinary principle and protective principle on their own are problematic as a ‘self-contained account’, all three of them offer relevant considerations on the issue of whether or not it is opportune to exclude illegally obtained evidence (Dennis, 2020: 104). The integrity principle allows courts to take into account factors that are relevant on all three accounts, and other factors as well.…”

“…He suggests that a judicial community that is perceived as condoning or even encouraging violations of the law will undermine the morality of the adjudication system (Zuckerman, 1989: 344). Dennis equally acknowledges that the criminal trial has ‘moral authority and expressive value’—in the sense that it is a public process which serves as a medium of communication with the public at large, it may carry a message of moral condemnation of the defendant, and it is an expression of the norms of the criminal law and the consequences of breach of those norms (Dennis, 2020: 52–53)—which may be jeopardised by the admission of illegally obtained evidence (Dennis, 2020: 109).…”

“… 1. The term ‘improperly obtained evidence’ is used here in a broad sense to mean evidence obtained by either illegal or unfair means: Dennis (2020: 301).…”

“… 50. Zuckerman (1989: 350) prefers ‘principle of legitimacy’, as well as Dennis (2020: 50–61, 109) who develops his own ‘theory of legitimacy’ for the law of evidence as a whole. Ashworth (2003) employs the term ‘integrity principle’.…”