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Laura Hoyano

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Associate Professor of Law, Faculty of Law, and Senior Research Fellow in Law at Wadham College

Laura Hoyano graduated from the University of Alberta in Canada with two degrees in medieval history before being converted to law, receiving a JD (Gold Medallist) from the University of Alberta. She was called to the Alberta Bar in 1983 and practised commercial, insurance and catastrophic personal injury law for 10 years, interrupted by a sabbatical year in 1990-91 to read for the B.C.L. at Balliol College, Oxford. In 1994 she moved to England to an academic appointment at the Law Faculty of the University of Bristol. From 1999 to 2013 she held a Tutorial Fellowship at Wadham College and a CUF Lectureship at the Faculty of Law, Oxford University. In October 2013 her Wadham post was converted to a Senior Research Fellowship to allow her to concentrate on her research in criminal justice and human rights, in particular the intersection between the law of evidence and human rights, as well as tort and medical law. She continues with her usual Faculty duties, as a University Lecturer (ULNTF), lecturing in Tort Law, Evidence Law and Medical Law & Ethics.  See further below under Research Interests.

In 2009 Laura was elected as a Fellow of the Honourable Society of the Middle Temple, with an advisory role concerning the enhancement of diversity at the English Bar, and she is a door tenant at a leading criminal barristers' set in London, Red Lion Chambers. She has conducted empirical research for the Crown Prosecution Service and the Home Office on prosecutorial decision making and on child abuse prosecutions. She chairs the Independent Advisory Committee on Child Maltreatment convened by Action for Children, which drafted a new offence of child maltreatment which is currently before Parliament. In December 2012 she was invited by the Verma Committee on Amendments to the Criminal Law, appointed as a consequence of  the furore sparked by a gang rape and murder in December 2012, to advise them on reform of substantive sexual assault offences for adults, children and other vulnerable persons, and a range of issues pertaining to more effective trials of such offences, including special measures for vulnerable witnesses, her contribution being acknowledged in the Report and in the national press conference held by Chief Justice Verma. She has recently been consulted by Her Majesty's Inspectorate of Constabularies and the NSPCC with regard to their enquiries into the investigation of sexual abuse allegations against Jimmy Savile and legal and practice responses to the issues raised. She is also frequently consulted by the Ministry of Justice, the Crown Prosecution Service and the Criminal Bar Association on a range of issues relating to child abuse and exploitation prosecutionsand the intersection of criminal justice and human rights more generally.



Publications

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Journal Articles

2014

Laura Hoyano, 'What Is Balanced on the Scales of Justice? In Search of the Essence of the Right to a Fair Trial' [2014] Criminal Law Review (forthcoming) [...]

This article contests the notion, prevalent in British jurisprudence regarding ECHR Article 6, and recently adopted by the Grand Chamber in Al-Khawaja v UK, that the right to a fair trial involves the 'balancing' of the rights of the defendant against the rights of the prosecution, the complainant and other witnesses, and the community at large. It argues that the whole notion of balancing is fundamentally misconceived, setting up a conflictual trap whereby defence rights are always seen as being in antithesis to those of the prosecution representing the overarching public interest. Instead, I propose a model embodying a sense of objective fairness predicated upon the right to a verdict with integrity; as such this right is not allocated to any one participant in the trial but is a common good, erasing any perceived antitheses within Article 6. The article goes on to explore the concept of "the essence of the right" in Article 6(3) caselaw, and explains why this has been extinguished by the approach to Article 6 of the Grand Chamber in Al-Khawaja, sacrificing principle to juridical, and possibly political, expediency. The consequence is that Article 6 now only serves to protect the right to a 'fair-ish' trial.


ISBN: 0011-135X

2012

R Taylor and Laura Hoyano, 'Criminal Child Maltreatment: the Case for Reform' (2012) 2012 Sweet & Maxwell, Criminal Law Review 871 [...]

The current offence of child cruelty in the Children and Young Persons Act 1933 (CYPA) originates in 1868. This article contends that it is not fit for its purpose, particularly given new understanding of the neurological and developmental impairments inflicted by neglect and emotional abuse. It should be replaced by a comprehensive maltreatment offence which is comprehensible to criminal and civil child protection agencies, professionals and the public.


2010

Laura Hoyano, 'Coroners And Justice Act 2009 -- (3) Special Measures Directions Take Two: Entrenching Unequal Access to Justice?' [2010] [2010] Criminal Law Review 345 [...]

This article maps (through diagrams) and analyses the changes made by the Coroners and Justice Act 2009 to existing Special Measures Directions for child witnesses, child defendants and complainants of sexual assault under the Youth Justice and Criminal Evidence Act 1999. Adult defendants suffering from some form of significant mental impairment are for the first time made eligible to apply for leave to testify using the live link and with the assistance of an intermediary. In addition, the 2009 Act deems witnesses to violent offences against the person involving the use of firearms or knives to be intimidated and hence automatically eligible for Special Measures. The article concludes that the measures for defendants do not go far enough and are susceptible to challenge under ECHR Article 6, and perhaps go too far in introducing anomalies in the treatment of different categories of intimidated witnesses.


ISBN: 0011-135X

Laura Hoyano, 'Ecclesiastical Responsibility for Clerical Wrongdoing' (2010) 18 Tort Law Review 154

2007

Laura Hoyano, 'The Child Witness Review: Much Ado about too Little' [2007] November Criminal Law Review 849 [...]

In December 2004 the Government announced a review of child evidence with a remit to consider whether section 28 of the Youth Justice and Criminal Evidence Act 1999, providing for video taped pre-trial cross-examination, should be retained in some form, to review the performance of Special Measures for child witnesses, and to consider measures for vulnerable defendants. The Review Group's Consultation Paper, Improving the Criminal Trial Process of Young Witnesses, was published only in June 2007. This article critically evaluates the most significant recommendations. As of October 2008, the Government had yet to publish its position regarding the responses to the Consultation Paper, notwithstanding that the consultation period had closed in October 2007.


ISBN: 0011 135X

2005

Laura Hoyano, 'Youth Justice and Criminal Evidence Act 1999: Special Measures Directions—Compliance with Article 6' (2005) 69 Journal of Criminal Law 488 [...]

evaluates the decision of the House of Lords in Camberwell Green Youth Court ex parte D [2005] UKHL 4, [2005] 1 WLR 393, which held that mandatory Special Measures Directions for child witnessesunder the Youth Justice and Criminal Evidence Act 1999 in principle comply with ECHR Article 6.


2002

Laura Hoyano, 'Misconceptions about Wrongful Conception' (2002) 65(6) Modern Law Review 883 [...]

DOI: 10.1111/1468-2230.00414

A critical analysis of the British cases considering the recoverability in tort of the cost of maintaining a child born following a failed sterilisation procedure, beginning with McFarlane v Tayside Health Authority [2000] 2 AC 59, and culminating in the Court of Appeal decision in Rees v. Darlington Memorial Hospital NHS Trust [2002] 2 All ER 177.


ISBN: 1468-2230

2001

Laura Hoyano, 'Striking a Balance between the Rights of Defendants and Vulnerable Witnesses: Will Special Measures Directions Contravene Guarantees of a Fair Trial?' [2001] [2000] Criminal Law Review 948 [...]

The Youth Justice and Criminal Evidence Act 1999 enables courts to issue Special Measures Directions to protect children and other vulnerable witnesses. This article reviewed the compatibility of these measures with the fair trial guarantee contained in article 6 of the European Convention on Human Rights. Subject to a few doubtful cases, including the withholding of Special Measures from child defendants, the great majority of Special Measures Directions were concluded to be likely to be ECHR-compatible. It was cited with approval by the House of Lords in R v Camberwell Green Youth Court ex parte D [2005] UKHL 4, [2005] 1 WLR 393, in holding that the 'primary rule' regime for child witnesses was compatible with article 6, but expressing doubt about the exclusion of child defendants from Special Measures.


ISBN: 0011 135X

2000

Laura Hoyano, 'Variations On A Theme By Pigot: Special Measures Directions for Child Witnesses' [2000] [2000] Criminal Law Review 250 [...]

This article maps and analyses the Special Measures Directions introduced for child and other vulnerable and intimidated witnesses by the Youth Justice and Criminal Evidence Act 1999. Simplified versions of the diagrams in this article are reproduced in the several editions of the official government guidance to Special Measures Directions, Achieving Best Evidence (Home Office et al).


1999

Laura Hoyano, 'Policing Flawed Police Investigations: Unravelling the Blanket' (1999) 62 Modern Law Review 912 [...]

This article critically evaluates judicial arguments against the imposition of tort liability on police forces for negligent investigations of crime. The article analyses and defends the much-criticised decision of the European Court of Human Rights in Osman v UK.


Laura Hoyano, 'The Profit Paradox: Protecting Legitimate Expectations in Tort' (1999) 78 Canadian Bar Review 363 [...]

In the new era of concurrent liability, Commonwealth appellate courts have called for the rationalisation of the law of remedies across causes of action. Yet the formalistic logic of the current remedial rules applicable to misrepresentations actionable in tort and contract can yield widely discrepant results on the same matrix of facts. Anomalies are exposed where the contract was induced by fraudulent or negligent misrepresentation, but the victim discovered the truth only after fully performing the contract. The tort damages will usually equal the contract award where the misrepresentation was relatively minor, such that the court concludes that had the plaintiff known the truth, it would have been negotiated the contract price to reflect the actual circumstances, increasing the profit margin. However, where the misrepresentation was so serious that the fully informed victim would have refused to contract with the defendant under any terms, the award is calculated on the basis of the plaintiff's cost of performance, without any compensation for loss of profit. To circumvent this paradox, the courts have devised several stratagems to award the plaintiff damages for lost profit. This article shows these devices to be flawed, and that under the current orthodoxy, the law still leaves the defendant to enjoy the fruits of its tort. The author proposes an alternate rule which redefines loss of profits in this context as reliance loss, submitting that this measure best achieves tort's remedial objectives of full compensation and deterrence.


1997

Laura Hoyano, Allan Hoyano, Gwynn Davis and Shelagh Goldie, 'A Study of the Impact of the Revised Code for Crown Prosecutors' [1997] [1997] Criminal Law Review 556 [...]

Reports on the results of an empirical research study commissioned by the Crown Prosecution Service on how Crown prosecutors use the Code for Crown Prosecutors to make decisions regarding a range of offences, using the evidential and public interest criteria.


1996

Laura Hoyano, 'Lies Recklessness and Deception: Disentangling Dishonesty in Civil Fraud' (1996) 75 Canadian Bar Review 474 [...]

Despite expressions of judicial distaste for the "current fashion" of alleging civil fraud, there continue to be significant of damages to pleading the tort of deceit as alternate or concurrent liability to negligent mistatement. This article explores the evidentiary difficulties in proving the requisite mental intent in the tort of deceit, with particular focus on pronouncements from the British Columbia Court of Appeal and the Supreme Court of Canada requiring that a plaintiff prove that the defendant intended to deceive the plaintiff in making the false statement. The author contends that this view was mistaken, and that both precedent and policy dictate that the requisite mental intent be merely that of inducing reliance upon the mistatement. To impose an additional requirement of proof of intent to deceive would extinguish recklessness as a separate avenue to establishing the dishonesty which is the essence of the tort, and might well result in making the tort of fraud more difficult to prove than the criminal offence of fraud.


Laura Hoyano, 'No Constitutional Licence for Defamation in Canada' (1996) 4 Tort Law Review 172 [...]

Critically evaluates the decision of the Supreme Court of Canada in Hill v Church of Scientology [1995] 2 S.C.R. 1130 holding that the common law tort of defamation generally complies with the guarantee of freedom of expression in the Canadian Charter of Rights and Freedoms.


1995

Laura Hoyano, 'Dangerous Defects Revisited by Bold Spirits' (1995) 58 Modern Law Review 887 [...]

Discusses the decision of the Supreme Court of Canada holding builders liable in negligence to subsequent purchasers for the cost of repairing dangerous defects in Winnipeg Condominium No 36 v Bird Construction [1995] 1 SCR 85, and argues that the House of Lords should abandon the immunity from such liability it accorded builders in D&F Estates and in Murphy v Brentwood.


Laura Hoyano, 'The Dutiful Tortfeasor in the House of Lords' (1995) 3 Tort Law Journal 63 [...]

critically evaluates the decision of the House of Lords in Hunt v Severs [1994] 2 AC 350 holding that a catastrophically injured claimant could not recover for her past and future cost of care, where that care had been provided by the tortfeasor.


1984

Laura Hoyano, 'The Prudent Parent:The Elusive Standard of Care' (1984) 18 University of British Columbia Law Review 1 [...]

This article evaluates the standard of care applicable to education professionals in Canadian, English and Australian law.


0

Rachel Taylor and Laura Hoyano, 'Criminal Child Maltreatment: the Case for Reform' [2012] Criminal Law Review 871 [...]

The current offence of child cruelty in the Children and Young Persons Act 1933 originates in 1868. This article contends that it is not fit for its purpose, particularly given new understanding of the neurological and developmental impairments inflicted by neglect and emotional abuse. It proposes a new comprehensive maltreatment of fans which would be comprehensible to criminal and civil child protection agencies, professionals and the public.


ISBN: 0011-135X

Books

2014

Nicholas Bamforth and Laura Hoyano, Human Rights Law and Principles in the United Kingdom (OUP 2014) (forthcoming) [...]

This Textbook, designed for postgraduates andsenior undergraduates, will provide an accessible but intellectually rigorous text book which addresses how human rights issues are configured and adjudicated in the specific British context, exploring the multiple dimensions of the European Convention on Human Rights, the European Union, international law, and national legislation and common law, and an introduction to human rights theory , integrating this into the legal analysis.


2010

Laura Hoyano and C Keenan, Child Abuse: Law and Policy Across Boundaries (OUP 2010) [...]

This book examines the whole process of child protection from complaint investigation to prosecution in the criminal and civil courts. It provides a coherent analysis of current law and procedure across the legal and geographical boundaries within which legal discussion of child abuse is usually confined, analysing criminal, family, tort, human rights and evidence law as they bear on child abuse cases. Comparative material is drawn from over 75 jurisdictionsusing the adversarial trial model. The book was awarded the first Inner Temple Book Prize (2008). The paperback edition is updated in English law, including the Coroners and Justice Act 2009 enacted on 12 November 2009.


ISBN: 978-0-19-957156-7

2007

Laura Hoyano and C Keenan, Child Abuse: Law and Policy Across Boundaries (OUP 2007) [...]

This book examines the whole process of child protection from complaint investigation to prosecution in the criminal and civil courts. It provides a coherent analysis of current law and procedure across the legal and geographical boundaries within which legal discussion of child abuse is usually confined, analysing criminal, family, tort, human rights and evidence law as they bear on child abuse cases. Comparative material is drawn from over 75 jurisdictionsusing the adversarial trial model. The book was awarded the first Inner Temple Book Prize (2008). The paperback edition is updated in English law, including the Coroners and Justice Act 2009 enacted on 12 November 2009.


ISBN: 978-0-19-829946-2

1999

Laura Hoyano and others, An Assessment of the Admissibility and Sufficiency of Evidence in Child Abuse Prosecutions (Home Office, United Kingdom Government 1999) [...]

This reports the findings of a qualitative empirical research study commissioned by the Home Office in 1997, to investigate the extent to which cases of alleged sexual, physical and emotional abuse or neglect are not prosecuted because the evidence gathered during the investigation are deemed insufficient or inadmissible. The study examined how that evidence is collected and evaluated in each of the three phases of a criminal prosecution: the interagency investigation, the assessment by the Crown Prosecution Service, and the trial.The study also provides a comparative survey of measures to facilitate the taking of children's evidence in other jurisdictions, in particular in Canada, United States, New Zealand and Australia.


ISBN: 1-84082-357-7

Chapters

2012

Laura Hoyano and HHJ Johanna Cutts QC, 'Special Measures and Anonymity Orders to Facilitate Testimony by Witnesses and Defendants' in Lord Justice Hooper and Prof David Ormerod (eds), Blackstone’s Criminal Practice 2013 (OUP 2012) (forthcoming) [...]

This is a substantial rewrite of the section D4 of Blackstone’s Criminal Practice 2012, which was written as a new chapter of the book.


2011

Laura Hoyano, 'Section D14 Assisting a Witness or Defendant' in Lord Justice Hooper and Prof David Ormerod (eds), Blackstone’s Criminal Practice 2012 (Oxford University Press 2011) [...]

This is an entirely new chapter for Blackstone’s Criminal Practice, and explains the statutory provisions and case law governing (1) special measures for child and vulnerable witnesses, including defendants (2) best practice in questioning child and vulnerable witnesses and (3) witness anonymity orders.


ISBN: 9780199694389

1997

Laura Hoyano, 'The Flight to the Fiduciary Haven' in Peter Birks (ed), Privacy and Loyalty (OUP 1997) [...]

This chapter explores the invasion of part of the territory of common law obligations by the fiduciary phenomenon, considering in particular Canadian and Australian jurisprudence. The encroachment of fiduciary concepts into Hedley Byrne advisory relationships and fiduciary liability for sexual exploitation is considered in some depth.


ISBN: 0-19-876488-X

Presentation/Conference contributions

1999

Laura Hoyano, Caroline Keenan, Gwynn Davis and Lee Maitland, 'Interviewing Allegedly Abused Children with a View to a Criminal Prosecution', paper presented at Criminal Law Review 863


Interests

Teaching: Criminal Law; Evidence; Tort; Medical Law and Ethics; Human Rights Law

Research: Evidence, Human Rights, Medical Law & Ethics, Tort Law, Criminal Law

Other details

Correspondence address:

Wadham College
Parks Road, Oxford OX1 3PN

other affiliation(s):

Oxford Human Rights Hub

Link to personal web site





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