Date post: | 02-Jun-2018 |
Category: |
Documents |
Upload: | jeffchrisbenji |
View: | 222 times |
Download: | 0 times |
of 51
8/10/2019 [1976] CLJ 20
1/51
Citation: 35 Cambridge L.J. 1 1976
Content downloaded/printed from
HeinOnline (http://heinonline.org)
Thu Sep 5 07:57:25 2013
-- Your use of this HeinOnline PDF indicates your acceptance
of HeinOnline's Terms and Conditions of the license
agreement available at http://heinonline.org/HOL/License
-- The search text of this PDF is generated from
uncorrected OCR text.
-- To obtain permission to use this article beyond the scope
of your HeinOnline license, please use:
https://www.copyright.com/ccc/basicSearch.do?
&operation=go&searchType=0&lastSearch=simple&all=on&titleOrStdNo=0008-1973
8/10/2019 [1976] CLJ 20
2/51
THE
CAMBRIDGE
LAW
JOURNAL
VOLUME
35,
PART 1
APRIL
97
CASE AND
COMMENT
THE CROSSMAN
DIARIES
The Diaries of a Cabinet
Minister
Volume
1 , Richard
Crossman's
account
of
his
twenty-two
months
at the
Ministry
of Housing
between
1964
and
1966,
was finally
published
in
December
1975
Extracts
had appeared
in
the
Sunday Times earlier in the
year. It
had
been Mr. Crossman's ambition,
as he explained in the Intro-
duction
to Volume 1, to write
a
book
which
fulfilled
for our
generation
the
functions
of Bagehot's English Constitution
hundred
years
ago by
disclosing the
secret operations of government,
which
are
concealed
by
the thick masses
of foliage
which we call the
myth of
democracy. He in fact kept
a
diary
from 1952
to
the
en d
of
1970
Priority in publication
has been
given
to
the account of his
first,
sometimes
unnerving
experiences
as a
Minister
of
the
Crown.
Mr.
Crossman,
who
died in
April 1974,
would have
enjoyed
wit-
nessing the
sequence
of events
in
which
the
Secretary of
the Cabinet
(Sir John Hunt)
ruled that publication
would be
against
the
public
interest;
the first
extracts were nonetheless
provided
in
the
Sunday
Times
without the Secretary's
consent (deletions in
subsequent
extracts were made to meet his wishes);
and
the Attorney-General
unsuccessfully applied in the
Queen's Bench
Division
for injunctions
to restrain
publication of the
book or of
extracts
from it. Within a
week
or
so of
the
judgment
of
Lord
Widgery C.J. in Attorney-
Generalv. JonathanCape Ltd.
[1975] 3 W.L.R.
606,
the
Attorney-
General
announced
that
he
would
not
appeal.
Lord Widgery's judgment
is
in some ways a
constitutional
lawyer's dream, replete
with
explanations
of the
conventions of
ministerial
responsibility, comments about
what actually happens
in
the
real
world
of politics, and passing references
to
the difference
between legal
and
moral
obligations. There
is
even
a new
word-
parameters
-to
add
to
the
vocabulary
of
constitutional
usage,
though
Lord Widgery warned
that it is
a
word
which has
been
much abused in the
course
of
this case. The judgment
is
particularly
noteworthy
because
of its recognition
of
the
need
to
balance
com-
C.L.J. 1
8/10/2019 [1976] CLJ 20
3/51
The
ambridge
Law
Journal
peting
facets of the
public
interest.
In
several recent cases the
English
judges
have shown
an unaccustomed readiness,
which
has perhaps
been
fostered
by
growing awareness
of
the arguments
for a
Bill of
Rights,
to
inject
this balancing
process
into their
reasoning.
In the
present
action
said Lord
Widgery,
the
Attorney-General
asks for a perpetual
injunction
to restrain further
publication of
the Diaries
in
whole
or in part. I am far
from convinced
that he
has made out
a case that
the public
interest requires
such a
Draconian remedy
when due regard is had
to other
public interests,
such
as
the
freedom of
speech.
..
The
emphasis
in
the
Attorney-General's
arguments was appar-
ently upon
the obligations
of secrecy
in relation to
Cabinet informa-
tion.
Lord Widgery certainly
stressed and elaborated
upon
the
doctrine
of collective responsibility
which
he
saw
as
an established
feature
of
the English
form
of
government,
adding
that
the
Cabinet
must be in possession
of
much
information
which is secret or
con-
fidential.
His
Lordship recognised
an obligation
on the part of
Cabinet
Ministers
to respect
that secrecy or
confidentiality,
not
because
of
any liability
arising from the
Privy Councillor's
oath (an
argument
which
was
effectively discounted) but
because
it is
in
the
public interest
to maintain
the doctrine
of
joint
responsibility.
The
strongest supporting
argument
advanced
by the Attorney-General
derived,
in
the court's
view, from
the
developing equitable
doctrine
that a man shall not
profit from
the
wrongful
publication
of informa-
tion
received by
him
in confidence, a
principle which
Lord
Widgery
was prepared
to
see
extended
to
apply
to
Cabinet Ministers
receiving
information in
confidence. It
is
perhaps
ironical
that a doctrine
closely
related
to the protection
of
privacy-see,
for instance,
the
Younger
Report
of
1972-should
have
been invoked
to
protect
governmental
secrecy,
though
one can appreciate
the logic
as
well
as the
irony
of
the extension.
Mercifully
Lord Widgery
recognised
problems
both of
substance
(what
matters
merit protection?)
and
of
timing (for
how long should the
protection
last?) which are
unlikely
to encourage
Law
Officers
to turn to equity
with
abandon.
The
issue of
timing
was
crucial
in
the
case of
the
Crossman diaries.
Lord Widgery
could
not
believe
that
after
an interval
of
ten or
eleven
years the publication
of Volume 1 would
inhibit
free
dis-
cussion in
the
Cabinet
of
today,
even though
the
individuals involved
are the same,
and the national
problems
have a distressing
similarity
with those of a
decade ago. He
admitted that there
could in
some
circumstances
be grounds
for continuing
confidentiality but
held
that the
courts
should, after
a
lapse
of time, intervene
only
in
the
clearest
of
cases.
I his was not
a clear case.
[ 976]
8/10/2019 [1976] CLJ 20
4/51
ase
and
omment
It is
implied
throughout the
judgment
that,
where there are
no
legal
grounds for intervention
by
the courts, reliance must be
placed
on
the
good sense and good taste of the Minister or ex-Minister
concerned.
This
would
particularly
apply, it seems,
to
official
infor-
mation
outside
the umbrella of Cabinet confidentiality.
In Richard.
Crossman's case,
the Attorney-General argued
that further reasons
for
judicial intervention
were
the fact that the diaries disclosed
advice given
by senior civil servants
and
the fact
that
they disclosed
observations
made by Ministers about individual civil servants. Lord
Widgery denied that there
was
any ground
in
law
for intervening.
In effect
he was denying
to
individual
ministerial responsibility the
legal protection, such
as it
is, which is offered to collective respon-
sibility. This should not be
interpreted,
however,
as
a recognition
of
some
lowly status for the convention
of
individual responsibility,
which
is,
after
all,
often accorded great respect
by judges
exercising
judicial review of
administrative action.
Indeed the Crossman
case
provided the impetus for yet
another
Radcliffe Committee on issues
of secrecy, and the Report of January 1976
proposed
internal
measures to
strengthen
the confidentiality behind
both
collective
and individual responsibility. This rapid response to the publication
of Mr Crossman's
diaries
and the
equally
rapid acceptance by the
Prime Minister of
the
proposed measures demonstrate the resilience
of constitutional conventions of ministerial responsibility.
One can accept
many legitimate
arguments
for
governmental
secrecy.
As
the Home Secretary
said
recently
(in
the Granada
Guild-
hall lecture for 1975), it would be wrong
to
have the
whole
process
of
decision-making
carried on under
a public
searchlight. But
despite the
Fulton
Report,
the
unday Telegraph case of
1971, the
Franks
Report, and
the Crossman diaries case, we
still have no
replacement
for
section 2
of the Official
Secrets Act
or
even a
firm
indication of what sort of replacement is proposed.
The
decision-
admittedly outside
the criminal law in favour
of allowing publica-
tion
of
Volume
of
the Crossman Diaries may be regarded
as
a
victory for
those
who
advocate
greater open government. But
the
gains should not be
exaggerated; we are
still a long way from
achieving
a
satisfactory reconciliation
of
the
demands of secrecy
and
openness
in
government. D.
G
T. WILLIAMS.
EXCLUSION
OF
ALIENS
AND E E C LAW
SINCE January 1973 the local
legal systems
of the United Kingdom
have co-existed with the
system
of
European
Community law
applicable in all
the Member States
of
the Communities.
Pro-
C L J
8/10/2019 [1976] CLJ 20
5/51
The Cambridge
Law
Journal
cedurally,
this
means
th t
our
courts now
may
(and,
in
the
case of
the
House
of Lords,
must) refer
questions
of Community law
to
the Community
Court
of
Justice
in
Luxembourg
for
a
preliminary
ruling. Substantively, it
means
that the
rules
of
our
law
must
now
be
interpreted
and applied subject
to
any relevant
rules of Com-
munity
law.
The
constitutional implications of
this
new
situation are
especially
well illustrated
by the first case
in which a
United Kingdom
court requested a preliminary
ruling from
the
Community
Court:
van Duyn v The
ome ffice
[1975] 3
All E.R. 190;
[1975]
1
C.M.L.R. 1.
Miss van
Duyn,
a
Dutch
national, had
sought
to
enter
the
United
Kingdom in
1973
to
take up
a secretarial
post at
the
head-
quarters
of the Church of
Scientology
at East Grinstead.
She
was
refused leave
to
enter
the
United Kingdom
on
the
ground
th t the
Secretary
of State considers
it undesirable
to
give anyone
leave to
enter the United Kingdom
on
the
business
of
or
in
the employment
of [the
Church
of Scientology].
The
power
to
exclude
was
exercised by
immigation officers under
section
4 (1) of the Immigra-
tion
Act 1971 in
accordance with
rules laid down
by
the Secretary
of State.
Rule
65 of
the rules applicable
to E.E.C.
nationals
per-
mitted a
refusal
of
leave
to enter
on the ground that
the
exclusion
is
conducive
to
the
public good, in
particular
where
it
seems
to the
immigration
officer right
to refuse
leave to
enter
if,
for example,
in
the
light of
the
passenger's
character,
conduct
or associations,
it
is
undesirable to
give
him
leave
to enter. The immigration
officers
in
Miss
van Duyn's
case
were acting in pursuance
of a
Government
policy
announced
in 1968 by
the Minister of
Health.
He
said
that the
Government
were satisfied
that Scientology
was
socially
harmful
and had decided to
take all
steps
within
their
power
to curb its
growth,
including
the refusal
of work
permits and
employ-
ment
vouchers to
foreign nationals
for work at a Scientology
establishment.
Miss
van Duyn challenged
her
exclusion in
proceedings
against
the
Home Office
in the
High
Court on the ground that
it was
unlawful
under
Community
law. She
relied
on
Article
48
of
the
E.E.C. Treaty
which provides
for
free movement of
workers
from one
Member
State to
take
up
employment in
another
subject to
limitations
justified
on
grounds
of
public policy,
public
security
or public
health.
So far
as the
implementation
of this proviso
was
concerned,
she
relied on
Article 3
of
E.E.C.
Council
Directive 64/221
which
provided
that
measures
taken on
grounds
of
public policy
or of
public
security
shall
be
based
exclusively
on
the
personal
conduct
of the individual concerned.
Her contention
was
th t the Govern-
[ 97 ]
8/10/2019 [1976] CLJ 20
6/51
ase
and omment
ment's general objection
to
Scientology was not a ground
related
to
her personal conduct.
The English court was thus faced
with the question which
of
the
three
very
different
texts (the
Immigration Rules, Article
48, or
Article 48
read
with the Directive)
contains
the legal limit
of
the
official
power to exclude and of the individual's right to
enter?
Could Miss
van Duyn
rely on the
Community texts
as impliedly
restricting
the
powers
under
the
British text? Translated into the
terms
of
Community law, the question was:
are
Article 48 of the
Treaty and
Article 3 of the
Directive directly applicable? If
so,
then they come within the
effect
of
section 2 1)
of
the European
Communities
Act
1972 under
which all
such rights,
powers
restrictions
from
time to time
created or
arising by or
under
the
[Community] Treaties .
as
in
accordance
with
the Treaties are
without
further
enactment
to
be given legal effect or used
in
the
United Kingdom shall be recognised and available in law, and
be
enforced
allowed and followed
accordingly.
. .
. This
provision
gives effect
to
the Community
law concept of
direct
applicability.
It also
gives
effect to the principle of the supremacy
of
Community
law
when
it is read
with section
2 (4) of the
1972
Act ( . .
. any
enactment passed
or
to
be
passed . shall
be
construed and
have
effect subject to the foregoing provisions of this section ) and
section
3 1) ( .
. any question as to
the
meaning or effect
of any
of the Treaties or .
.
of any Community
instrument
shall be .. .
for
determination
in
accordance
with
the
principles laid
down
by and any relevant decision of the European Court
. .
. ). The
principles of direct applicability and supremacy have been laid
down
in
consistent jurisprudence
of
the
Court.
The High
Court
(Pennycuick
V.-C.)
accordingly made use of
the power under Article
177 of
the E.E.C. Treaty and R.S.C. Order
114 to ask the Community Court
for
rulings on
three
questions. Was
Article 48 directly applicable? Was Article 3 of the
Directive
directly applicable?
Was
the
plaintiff's
case
within
the
concept
of
personal
conduct
used
in
the
Directive?
In
the
light
of
its
pre-
vious
jurisprudence, the Court had little
difficulty in
ruling that
both Article 48 of
the E.E.C. Treaty and
Article 3 of the
Directive
had direct effect and conferred
on
individuals rights which
national
courts
must
protect.
The
latter
was clearly intended
to
limit
the
discretionary power of the
national
authorities for the entry and
exclusion of aliens; it
was
a limitation
on
an exception to
one
of the
fundamental
provisions of
the Treaty (Article 48, free movement
of workers)
and persons concerned
should
be
able to rely
on
the
obligation
even though
it
was
laid
down in an instrument which did
L J
8/10/2019 [1976] CLJ 20
7/51
6
The Cambridge Law Journal [1976]
not
as a
whole
have
direct effect
(Article 189
of the
Treaty
provides
for direct
applicability
only
in
the
case
of regulations
). So far
as
personal
conduct was
concerned, a
Member State was entitled
to
take
into
account
as
a
matter
of
personal conduct
the fact
that
the
individual
was
associated
with
some
body
or organisation
the
activities
of which
the
Member
State
considers
socially
harmful,
even
if
no restriction
is placed on
nationals who wish
to take up similar
employment with
the same body
or organisation.
Thus the
Court
in
effect ruled
that the
powers
of the
British
authorities
were
subject
to
the limitations in
E.E.C. law but
that their action
in
a
case such as
that
of Miss
van
Duyn would be consistent
with
the E.E.C. provisions.
Miss
van Duyn's case
thus demonstrates
with
admirable clarity
four far-reaching
constitutional
effects
of
United
Kingdom accession
to
the European
Communities. 1)
The limits of
the
powers
of
British authorities
may
now be set by
external
sources of
law
taking
effect
not merely
as hitherto
under international
law
but also
under
the
law to be
applied
by
British
courts in
the
ordinary
way. (2)
The
legal limits
of
a
discretionary
power,
a
crucial problem at
the frontier
between law
and policy,
will
be defined
by
the Community
Court
if
they
are contained in
Community law.
3) Community
legislation
may
impliedly
amend
prior
United Kingdom
legislation
in casu the
1971 Act). (4)
Community legislation
may
prevail
over
subsequent
United Kingdom
legislation
in
casu
the Immigration
Rules
made
in
1973
insofar as
they are given
virtual legislative
force by
the
1971
Act .
P ILIP ALLOTT.
THE TERRITORIAL
WATERS OF
NORTHERN
IREL N
THE
Northern
Ireland Court of Appeal
in D.P.P.
for
Northern Ire
land v. John
McNeill
and Others
(2 May
1975,
presently
unreported
discussed
constitutional issues
hitherto raised, if
at all, only
in
academic
cloisters.
The story
began
in
1973 when
the respondents
were
prosecuted by
the Northern
Ireland Fisheries
Conservancy
Board
on a complaint
charging
them with using in
the sea
a salmon
net in
a manner prohibited by
the
Fisheries Act
(Northern
Ireland)
1966 of the
Stormont
Parliament. The
location
of the
alleged
offence
was later established
to be
in
the open sea within
150 feet
of
a
vertical
rock-face at
Torr Head, County
Antrim. The complaint
came
before
a
resident magistrate,
Mr. P.
Maxwell,
who
held
that
he did
not have competence to
hear it. He
put forward three main
reasons
for
his
decision:
1) The
Parliament
of Northern
Ireland
had jurisdiction over
six
parliamentary
counties
and two
parliament-
ary
boroughs
only
and
these
administrative
areas
did
not include
any
8/10/2019 [1976] CLJ 20
8/51
Case
and
Comment
part
of the open sea;
(2)
the
1921
Agreement between
Great Britain
and Ireland
(later
scheduled
to
the
Irish
Free State
(Agreement)
Act 1922) had the
effect of
vesting
the
territorial
waters
of the
whole
of
Ireland
in
the Government
of
the Irish Free
State; 3)
the
1966 Stormont Act could
not derive validity from
the Fishery Limits
Act 1964
of the
Westminster
Parliament since
the latter had no
longer any rights of legislation
in
the waters
concerned.
The
magistrate's ruling was taken to the
Northern Ireland Court
of Appeal
on a
case
stated.
The court was asked
to
decide
whether
the magistrate was correct in
holding 1) that the
United Kingdom
Parliament had no power
to
legislate for
fisheries in
the
seas around
Northern Ireland;
(2)
that the
Northern
Ireland
enactment of 1966
was ultravires in
respect
of sea fisheries.
The respondents
offered
no argument before
the Court of
Appeal
where the issues raised by
the magistrate
were nevertheless fully
argued
by the
Director of Public
Prosecutions
who
had taken over
the
case on
the instructions
of
the Attorney-General in
view of its
constitutional
importance.
Lowry L.C.J. and Jones L.J.
gave written
reasons for answering
No to both questions; Curran
L.J. simply
concurred in
the
judgments
of
both his
brethren.
Lowry L.C.J.
held at the outset
that a statute of the
United
Kingdom Parliament
was incapable
of
challenge
in any United
Kingdom court.
He cited Mortensen
v Peters (1906) 8
Fraser
93,
101,
Croft v Dunphy [1933]
A C 156, 164 and
I R C v Coilco
Dealings
Ltd
[1962]
A.C.
1,
19
Thus
the
1964
Westminster
legisla-
tion
and consequently
the 1966
Stormont
enactment
were
not
ultra
vires
This was enough
in
the
Chief
Justice's
opinion to
decide
the
appeal but
he felt obliged
to
consider
the
other
issues
raised. He
pointed out that
the 1964
Act was passed
to implement
the European
Fisheries Convention
to
which
the
Government
of
Great Britain and
Northern Ireland and
the
Government
of Ireland were
separate
parties.
In
becoming
a
party, the latter Government had not indi-
cated
that
it was
thus
intending
gratuitously to concede
to the former
exclusive fishing
rights
in
part of its own
territorial sea. The Chief
Justice'
considered
that
although
the parliamentary
counties
and
boroughs
of Northern Ireland did
end at the low-water mark
the
power
to make laws for the
peace,
order and good
government
of
Northern Ireland conferred on
its Parliament by the Government
of Ireland Act
1920
included
power to
legislate over the adjacent
territorial
waters and
the
fisheries
therein.
He
denied that
the
1921
Agreement
had acknowledged
that
the
territorial waters of the
whole of
Ireland
were
vested
in the
Free
State Government,
pointing
out that
the Agreement gave
Northern
Ireland an
election,
which it
L J
8/10/2019 [1976] CLJ 20
9/51
The
Cambridge Law
Journal
later
exercised, to exclude itself
from
the
powers of
the
Free State
Parliament.
He concluded:
Once
this election
was made,
it became
inconceivable
that
waters
adjacent
to
County Antrim
could
be
regarded
as
the territorial
waters
of a
State
the
powers of whose
Parliament
and
Government no
longer
extended
to County
Antrim
in particular
and Northern
Ireland as
a whole.
The
Chief
Justice
considered
that
the inclusion
of
the
harbour defences
at
Belfast
Lough
in the facilities
granted to the
British forces
by the Free
State Government
under the
Agreement
was made
in
case
the
election
was
not
exercised.
Jones
L J
first
asked
himself
whether
under
the
1920
Act
Northern
Ireland
consisted
only of
the land of
the six
counties while
Southern
Ireland
consisted
of
the remander of
the
island
together
with
the territorial
waters
surrounding
the
whole
island.
He
inter-
preted
the
Act
as
in effect
setting
up two
subordinate
States with
similar types
of
government
and
concluded:
. Northern
Ireland
as
constituted
by
the
1920
Act, consisted
not
only
of
the
land
mass
thereof but
also of
the
former
rights
of
the United Kingdom
in
the
waters
surrounding
Northern
Ireland,
subject always
to
the deroga-
tions
therefrom
contained in
the Act
and
the overriding
authority
of Westminster.
He
supported this
conclusion
by citing a Commons
reply
given
on
27 November
1922
by
the
Attorney-General which
endorsed
the
view that
the territorial
waters
go
with
the
counties
making up
Northern
Ireland.
Even
if
this
were
not the
case, held
Jones
L.J.
the rights
in the
territorial waters
remained
with
the United Kingdom
and
had
not passed to
Southern
Ireland
under
the
1920
Act.
Finally,
citing the same
authorities
as
the
Chief
Justice,
he held
that
it was
quite
incompetent
for
any
court
in
the
United
Kingdom
to
condemn
as
ultra vires
any
statute passed
by
the
United Kingdom
Parliament, a
proposition on
which in
his
opinion
the appeal could
have
been
shortly decided.
It
is
significant
to
note that
although Lowry
L.C.J.
refrained
from
considering
the
status of
territorial waters
in
United Kingdom
constitutional
law,
Jones
L.J.
seemed
to veer towards
the
view
that
they were
an integral
part of
the
Province
although
his
conclusion
was
worded
in
terms
of rights
in
the waters
rather
than in
terms
of
boundaries
or
property. One day
it
may
fall to
a
court
to
determine
the municipal
law
status of
the
waters, sea-bed
and
subsoil
adjacent
to
the land of
the
United Kingdom.
If the case of
R
v.
eyn (1876)
2 Ex.D.
63
did
conclusively
decide
that the
area
below
low-water
mark
was
then
at
common
law
no
part of
Her
Majesty's
realms
and domi-
nions, as
the Supreme
Courts of
the United States
and
Canada
and
[1976]
8/10/2019 [1976] CLJ 20
10/51
aseand omment
the
High Court of Australia have
so
held, how can the position
now
be different? There
is nothing in
the enacting part
of
the Territorial
Waters Jurisdiction Act 1878 to effect the
change and
there
has
been
no
other
relevant general
enactment.
On
the
other
hand, the
bed
and subsoil of the
sea adjacent to the whole of the United
Kingdom
has
at least
since the beginning
of the
nineteenth century
been
administered
by the executive as Crown
land and the revenue
there-
from paid into the
Consolidated
Fund.
To
find
legal
justification for
this unbroken
and almost
unchallenged
practice it might be
argued
that section
of
the Crown Lands Act
1866 recognised
that the bed
of the sea is, or can be, Crown
land, Alternatively, it might be
argued
that
the revenues from the
sea-bed
and subsoil,
at
least these
days to a
distance of three miles, are hereditary casual
revenues
of
the Crown
and have under the civil
list
legislation similarly
been
surrended
to
the
Consolidated
Fund.
But if
the territorial
waters,
sea-bed and subsoil are not at
common law
part
of England,
Scotland
or
Northern
Ireland properly
so
called,
are they then
in
the juridical
limbo of
Crown land held
in
gross,
to revive a term
used sixty years ago
by
Sir
John
Salmond? In
his
majority judgment
upholding the
validity
of the
Seas
and
Submerged
Lands Act
1973 of the Australian Federal
Legis-
lature,
Barwick C.J. declared on 7 December
1975
in
the High
Court of Australia that a British Colony,
like
England
itself, did
not
at common
law
extend
beyond
low-water
mark
but
that
any
proprietary,
legislative
or
other
rights
over
the
territorial
seas
or
their subjacent soil
remained with
the
Imperial Government.
In
order
to avoid litigation
on the same
massive scale
as
that in
the
United
States,
Canada
and Australia, it
is hoped that
the municipal
law status
of the United Kingdom's adjacent maritime
areas will be
settled
once and for all
if
there is
to
be
any devolution of powers on
regional
assemblies.
GEOFFREY MARSTON
DEALING
WITH
MENTALLY DISORDERED
OFFENDERS
MENTALLY
disordered
offenders that
is
to
say,
those
who
have
been
formally identified as
such have
received, some may
think,
a
quite
disproportionate
amount
of
both public
and
official attention.
For
they present
a problem that is statistically insignificant: currently
less than
one
per cent.
of admissions
to
hospitals
which receive
mentally disordered patents
come
from criminal courts
or penal
establishments, while
psychiatric
disposals account
for less
than
half of one per cent.
of convictions for
non-motoring offences.
And
yet the recent
Report o
the [Butler] ommittee
on
Mentally
C L J
8/10/2019 [1976] CLJ 20
11/51
The Cambridge Law
Journal
bnormal
ffenders
(Cmnd. 6244)
is
the
fourth official report con-
cerning
such offenders
in
less than twenty
years. t is also much
the
most detailed and comprehensive: there
appears
to
be
no relevant
stone
which,
in the
course of twenty chapters, the
Committee
have
left
unturned.
Many of its most
important
recommendations
call for
administrative,
not legislative,
action. The real
need, as the
Report
makes
clear, is not to
make
great
changes
in
the
legal framework
for
dealing
with these
offenders, but
to improve, firstly, the
chances
of
mental disorder
being diagnosed; secondly, the quality
of medical
reports
to
the
courts; and,
thirdly, the flow
of
information
and the
level
of
mutual
understanding
and co-operation
between courts,
doctors, and
the Home Office, and
between
hospitals
and the
social
services. For the truth
of the matter
is th t the
great
problem
(which
fully justifies
the
Committee's
labours)
is th t presented
by
the
very
substantial minority
of
those
detained
in
prisons
and borstals
who
are mentally
disordered:
the Committee guess that
they
may
amount
to as many as
a
third
of
the population
of
the
local
prisons.
This
would not
very
much matter
if
the
facilities for
treatment in
prisons
were comparable to those
available to
the
community
at
large: but they
are
not
and, in
the
nature
of things, are never likely
to be.
Furthermore, the
Committee
are satisfied
that there are
too
many
offenders
detained
in special
or
psychiatric hospitals
as
result
of court
orders
who
do
not
need
to
remain there.
Some
of
the
Committee's
recommendations
will,
however,
be
of
primary interest
to
lawyers:
notably
those concerning (to
use
current
terminology)
prosecuting policy,
fitness to plead,
the
insanity defence
and
the
special
verdict, diminished
responsibility and infanticide,
criminal
liability for damage
or
injury
done
while voluntarily intoxi-
cated,
a
new
form of indeterminate
sentence, and
consent to
treatment by persons
subject to Hospital
Orders.
rosecuting
policy
(Chap. 9-II): The Committee
rightly
urge on
the police and the
D.P.P.
greater
restraint
in prosecuting
the
men-
tally
disordered.
Where
any
apparent
offender
is clearly
in
urgent
need
of psychiatric treatment and there
is no question
of
risk
to
members
of
the
public
the
question
should
always be
asked
whether
any
useful
public purpose
would
be
served
by prosecution
These
remarks
apply
in
cases of
homicide or attempted
homicide
or
grave
bodily harm
as
in less serious cases.
As,
the
Committee
point out,
the
institution
of
criminal
proceedings
may well
delay the treatment
which
an apparent
offender
obviously
requires.
Fitness to plead
(Chap.
10):
Several
important
changes are
recommended.
The
criteria
for determining
whether
a person
is
under
disability
in relation
to
trial
should,
it
is proposed,
be
[ 97
8/10/2019 [1976] CLJ 20
12/51
Case
and
Comment
widened
to
include whether he can
give adequate instructions
to
his legal advisers, and plead
with
understanding
to
the
indict-
ment, but
(in
the
view of the majority)
there
should be no change
in
the Podola
[1960]
Q B
325)
rule
that
amnesia,
however serious,
does
not amount
to such
disability.
This is
odd,
and
the majority's
reasons
are unconvincing.
Since
the Committee
also recommend
that the
disability issue
should be tried
by the
judge,
not
the jury
(unless the defendant requests otherwise-which
is
not
expected
to
happen
very
often), and that
the defendant's
condition should
be
reconsidered
not later than
six
months after
the first finding of
disability,
and
that
there should
be either
an
ordinary trial (if
the
defendant
had recovered)
or a
trial
of
the facts
(if he
had not),
it
is
strange
that
the majority are not
content
to
leave the
question
of
the
effect
of amnesia
to be
subsumed
in
the
general issue
of
whether
the defendant
can give
adequate
instructions
to
his legal advisers.
It
could then be
decided
on a general basis
of fairness,
giving
due
weight
to
the severity
of the amnesia and
the
nature
of the matters
that
will
be in dispute.
Other
(and very sensible)
proposals
include
ones
that on
a finding
of disability the court
should have a discretion
as
to
disposal (other
than penal measures)
and
not, as at present,
be
compelled
to
make
a
hospital
order;
that
magistrates,
as
well as the
Crown Court, should
have
jurisdiction
to
make a
finding of
disability
(though it
is not
clear
whether committing
magistrates are
included,
as they
should
be,
in
this recommendation);
and
that
findings
of disability should,
like
hospital orders,
require
to
be
supported by the
evidence of two
doctors, one of whom
must be a specialist.
The defence of insanity
and the special
verdict Chap. 18): Here
the Committee
recommend
root and branch
reform. The defence
of
insanity (renamed
evidence of mental
disorder ) must,
as a
matter
of principle,
and
regardless of whether it
is
much relied
on, be
retained, but M Naghten
and mandatory
committal to hospital
should go (for
all the well-worn reasons),
the rules relating
to
the
burden
of proof should
be
rationalised,
and defendants
should be
able
to
plead
not
guilty
on evidence
of
mental
disorder.
To
replace
M Naghten the
Committee have
gone
not
to
America but
to
France: the defence
of mental disorder
should be available
where
either
the
mental element
required for the
offence is, by
reason
of the
evidence of mental disorder
(defined
so
as
to exclude transient dis-
orders caused by
physical
injury,
or the abuse of
alcohol, drugs and
the
like),
not proved and the court
finds,
on
the balance of proba-
bility, that
the defendant was mentally disordered
at the
time
of
the
act or omission in respect
of which
he is charged; or
that
at the
L J
8/10/2019 [1976] CLJ 20
13/51
The Cambridge
Law
Journal
time
of
the act
or omission
charged
the offender was, on the
balance
of
probability,
suffering from severe mental
ilness
or
severe sub-
normality
which
is
further
defined
so
as to exclude, inter
alia,
psychopathic
disorders).
The
first limb
thus
provides (like
the
first
limb
of
the
M Naghten
rules)
for the
case where the prosecution
is
unable
to
establish the
mental element
of
the
offence charged,
the
second for
that
where
the
offence is proved,
but
there is none
the
less evidence
of
serious mental disorder
at the time of
its
commission. The
proposal has the
very
great
merits of being (in
the first
limb)
logical
and
(in the second) simple.
No
attempt
to
establish
the
impossible is
required: no connection between
the
offence
and the severe mental disorder
need
be
shown.
It
suffices
to prove
that at
the time
of
the offence the
defendant was severely
disordered,
and,
as
a matter of plain
commonsense,
this
justifies
his
exemption
from
criminal
responsibility. The Committee
also
propose
that
as far
as
the first limb of their
defence
is
concerned
i.e.,
where
the prosecution
fail to prove
the requisite mental
element),
the court
should have
a
discretion
to record
a simple
verdict
of not
guilty if,
as in
the
case
of
the
elderly and
forgetful
shoplifter, the
special
verdict
would
be
as
a
sledgehammer
is
to
a
nut.
Diminished
responsibility and infanticide (Chap.
19):
Diminished
responsibility
is
an
easy target for any critic, and
the
Committee
make no
bones about
their
opinion
that
section 2 of
the Homicide
Act
1957
is
a nonsense. As they
say,
the
case
for the
plea of
diminished responsibility
now rests largely
on the fact
that
precisely
because
there is
a
fixed sentence of life imprisonment
for
murder
there
should
be some
way
for
the court to
avoid
it in cases where
there
is
evidence of mental
disorder.
The
Committee
accordingly
urge the Criminal
Law
Revision Committee
to reconsider their pro-
visional view, expressed
in an Interim Report on the Penalty
for
Murder
1973) (Cmnd.
5184),
that
the mandatory penalty should
remain,
for in
many
murder cases
a
life sentence
is inappropriate
and
may be inhumane.
The Butler
Committee
have,
beyond question,
the
better
of half-a-dozen
different
arguments on this point,
and if
it
gains
the
day
against
the
obscurantism
of
the C.L.R.C.
the
diminished responsibility provision
can,
as
they
recommend, be
abolished.
If,
on
the
other hand, the
mandatory
life
sentence is to
remain,
the Committee recommend
the
replacement
of section
2 by
a provision
which
would
parallel
their proposed
special
verdict:
no
connection,
other
than that of contemporaneity, between
the mental
disorder and
the killing would be
required,
and
the
defence
would
be available on proof of
a
wider range of mental disorders
than
in
the case of
the special verdict.
Whatever happens,
the Committee
[ 97 ]
8/10/2019 [1976] CLJ 20
14/51
Case
and
Comment
would abolish
the separate
offence of infanticide.
It
is unnecessary,
it enshrines a legal fiction
and
it
has
undesirable consequences by
drawing an
unrealistic distinction
between those
mothers who
kill
children
just over,
and those
who kill children
just
under,
twelve
months
old
and between those mothers
who
kill and those
who
severely
batter
or neglect their
babies.
Criminal
liability or damage
or
injury
done
while voluntarily
intoxicated
(Chap.
18-IV): Liability for being
drunk and danger-
ous,
which has
for
long been advocated by
Professor
Glanville
Williams
as the
best
solution
to
the
problem presented by the
defendant who
manages to secure an
acquittal by
producing
evidence
of
intoxication
(whether
by drink
or drugs)
which casts doubt on
whether
he
had
the
mental element
required
for
an
offence,
meets
with
the
Committee's
approval.
The liability would
be strict, would
arise whenever
a
defendant
is
shown
to
have
committed the external
elements
of
a
dangerous offence while
voluntarily
intoxicated,
and
would
attract
twelve
months'
imprisonment on a first,
and
three
years on a second, or
subsequent,
conviction.
Although
the
Com-
mittee
include homicide
among
their dangerous offences,
their
new crime
would not,
so long
as
the
law of manslaughter
remains
unchanged,
have any effect in
cases
where
death
was
caused,
fo r
the
voluntarily
intoxicated offender
may
already
be convicted
of
that
offence: Lipman
[1970]
1 Q.B.
152; Howell
[1974] 2 All
E.R.
806.
The
Committee
also
recommend that,
as in the case
of
alibi
evidence, notice
of
intention
to introduce
evidence
of mental
dis-
order
or
intoxication
should
be
required of
the
defendant: an
interesting
example
of
doing
good
by
stealth.
new
indeterminate
sentence
(Chap. 4-111):
To meet
the
prob-
lem
both of
the mentally
disordered
offender
who
is currently
given
a determinate
prison sentence
(usually
because,
not being
considered
treatable, a
hospital order is
unsuitable and a life
sentence
is
tech-
nically impossible
or
otherwise
thought by
the
judge
to
be
inappro-
priate),
and
of
the
psychopathic
offender
who
is sometimes subjected
to
a hospital
order though
there is
nothing a
hospital can do
for
him, the Committee
propose
a
new indeterminate
sentence: the
reviewable
sentence.
Those eligible for
it
would be
mentally
dis-
ordered
offenders
who
(a)
had
committed (or attempted
or threatened
to commit) offences
involving
personal
harm,
in
respect of whom
.(b)
the court
is
satisfied
that there
is a substantial
probability
that
such
offences will
be
repeated
i.e.,
that
the offenders
are
dangerous
),
and
where
(c)
either
the
offences,
if
completed,
carry
life
imprisonment,
or
the
offenders
have previously
been convicted
L J
8/10/2019 [1976] CLJ 20
15/51
The ambridge
Law Journal
of offences carrying
(but
have
not
been sentenced
to) life. Review
would
be
at two-yearly intervals and by
the
Parole Board: the
offenders being
detained
until
the Board thought
that they had
ceased
to be
dangerous.
It
may, however, be
doubted whether
this proposal
is
well
calculated to
overcome
the
present judicial
reluctance
to impose
indeterminate sentences
on
the
mentally dis-
ordered a
reluctance which
probably
springs
partly from the
dual
function of the
life sentence (it is also used
simply
as a
severe
penalty for
grave crimes) and partly from
a belief
that the system
of reviewing life sentences is
unsatisfactory. For
while
requirement
(c)
reflects
the
Committee's laudable wish to ensure that
the
mentally
disordered
are not
liable
to more
severe
measures
than
ordinary offenders,
(b) requires
judges
to make a formal prediction
as
to the future
which (unless they
change
their
spots)
they
are
likely to be
extremely
unwilling
to do.
Acting
on
hunches
is
one
thing:
telling
the world
what you have seen
on peering
into
a
crystal
ball is another (and very unjudicial).
Given that
the
sentence
is
to
be
reviewed
every
two
years,
would not
requirements
(a) and (c)
be sufficient?
onsent to treatment
by
persons
subject to Hospital Orders
(Chap. 3-11): Has society the right to impos
psychiatric treatment
on
offenders either
for their own
good
or for its own
protection?
The Royal Commission on Mental Illness of 1954-57 thought so
(Cmnd. 169, para.
316):
the Committee
think
not (exceptional
cases
apart)
(paras.
3.50-3.56).
The
fact
that
the Committee do
not
stop
to argue the
philosophical point with the Royal Commission is some
indication of the change that has,
in less than
twenty years,
taken
place in public attitudes both
to
psychiatric treatment and to indi-
vidual
rights even of prisoners
and the mentally disordered. The
Royal Commission
took the
view that
the fact of their
conviction,
even though their offence may not have been connected
with their
mental disorder, meant that they
were liable to the coercive powers
of the State. Consultant psychiatrists
should, accordingly,
not be
too
hesitant
to
impose treatment on unwilling
offenders:
the
Hospital Order provided what
might
be
the
only
opportunity
of doing
what would be
for their
own, or
the
country's, good.
It
is far from
clear
whether Parliament gave effect
to
the
Royal Commission's
view, though
the
legal advisers of
the
Department of Health and
Social
Security have, as
one would expect,
assumed that
it
did.
Section 60 1) of the
Mental
Health Act 1959 merely provides for
Hospital Orders authorising
an offender's admission to and deten-
tion
in such hospital as
may
be specified.
Once there the detainee
must obviously receive basic nursing care
(which
is
within
the
Act's
[1976]
8/10/2019 [1976] CLJ 20
16/51
Case nd
omm nt
definition of medical
treatment
) for that
is
what warranted
the
making of
the
Order.
But the
Act does
not
expressly
authorise
the
doing of anything else to him. The Committee therefore recommend
that it should be amended
to
make crystal clear the very restricted
circumstances
in
which,
in
their
view,
he may, to prevent
injury
to himself
or others in
the hospital, be
subjected to treatment to
which he objects.
Those
of
the
Committee's
recommendations
which
require
legis-
lation would
clearly
make the law
governing
the criminal liability of
the mentally disordered much more rational.
It
is
to
be hoped that
there will be no delay
in
implementing them.
P.
R. GL ZEBROOK
CRIMINAL LAW- CAUSATION
AT
first
sight the decision
in
Blaue
[1975]
W.L.R. 1411
may
seem
unexceptionable, because it
simply
follows
old authority
to
the
effect
that
if
D inflicts serious injury on V, and V refuses, however
unreasonably,
to receive
medical
treatment and so
dies
from the
injury, D
is responsible
for the death. Here V
was a
woman who,
being a
Jehovah's
Witness,
refused to
have a blood transfusion
that
would probably
have
saved her life. The
judge directed the jury that
they would get some help from
the decided
cases
to
which counsel
had
referred
in
their
speeches, and said that they might
think they
had
little
option
but
to
reach the conclusion
that
the
stab wound
inflicted by
the defendant
was
the operative
cause of death or a
substantial cause of death. The jury convicted of manslaughter, and
the
conviction
was
affirmed
on appeal.
Although the
case follows
the
precedents, preferring them to
opinions expressed in textbooks intended for students or as studies
in jurisprudence,
it
fails
to-notice
that all of them dated
from
a
time
when medical
science was in its infancy, and when operations
performed w ithout hygiene carried
great
danger to
life.
It was there-
fore
open to the court for the benefit
of
the
defendant
to consider
the
question
afresh, and there
were
several reasons for doing so.
It
had
been held
in
Roberts
(1971) 56
Cr.App.R.
95
that
the
test
of imputable
causation (wfiere the victim had sustained injury
in
an attempt to escape) was one of reasonable foresight.
It
is a
useful test, and one might have hoped that it would be generalised;
yet we are
now told
that
it
does
not
apply
to the circumstances
in
Blaue
Why not?
It
had been held
in
the
law of tort that the test of reasonable fore-
sight
applies
to facts
like
those
in
Blaue
but
the court refused to
bring
C.L.J.
8/10/2019 [1976] CLJ 20
17/51
The ambridge Law
Journal
the
criminal
law
into line.
The criminal law
should avoid
the
appear-
ance of harshness,
and
to
make
it
more
stringent
than
the
civil law
in the
matter of
causation
is
surprising.
Lawton L.J.,
speaking for
the court,
explained the difference
between
crime and
tort
by saying
that
the criminal
law
is
concerned
with
the maintenance
of law
and order
and the
protection of
the public
generally.
This overlooks
that Blaue
was in any
event punishable
severely
for wounding
with
intent. What social
purpose
is
served by
giving
an
attacker extra
punishment because
the person
attacked unreasonably
refused
treatment?
On the
point of principle
the court
thought it sufficient
to say
that
the stab
wound inflicted
by Blaue caused
the death.
Of course
it
was
a cause
of
the death, but
the victim's
refusal
of
treatment
was
an additional
but-for cause.
The court described
the
defendant's
act
as
the
phsyical cause of
death, and regarded
that
as
conclusive.
But
in
cases of multiple
causation it
is
unconvincing to select one
c use as
the cause
The
best
reason
for the decision,
though
not one
given
in
the
judgment, is that
Blaue would
have been
guilty
of
unlawful
homicide
if the victim
had had
no
chance of
obtaining
medical
assistance, and
therefore
(it
may
be said) should
be equally
guilty if the
victim chose
not to avail
herself of
such assistance.
Still,
there is a difference.
The
decision
means
that
if the
death penalty
for
murder
were
restored,
the
attacker
might
be
hanged
purely as a result
of
the
unreasonable
decision of
the
victim
not
to
accept
proferred
medical
help.
On one point
the
decision
is to
be
welcomed.
During the
nine-
teenth
century
judges
would
robustly
tell
the
jury
whether
or
not
the
defendant
was responsible
for the
consequences on given
facts.
At the
present day the
question
is
sometimes
left to the
jury without
real guidance;
to ask them
whether the consequence
flowed
from
the defendant's
act, or was
substantially caused
by the defendant's
act, is no
guidance
at all. In
Blaue the Court
of Appeal said:
The
issue
of
the cause
of
death
in
a
trial for either
murder
or man-
slaughter is one of fact
for the jury to decide.
But if, as
in this case,
there
is
no conflict of evidence
and all
the
jury
has to do is
to apply
the
law to the
admitted facts, the
judge
is entitled to tell the
jury
what the result
of
the
application
will
be.
In this
case the judge
would
have
been entitled to have
told the
jury that the
defendant's
stab wound
was an operative
cause
of
death. This
is an amelioration
of the present
position,
but the improvement
could
go further. The
first sentence
in
the
passage quoted
is
surely
wrong:
whether the
defendant's
act
was a but-for
(factual) cause
of death is a
question
[ 97
8/10/2019 [1976] CLJ 20
18/51
Case
and
Comment
of fact, but whether,
being
a but-for cause,
it
was
an
imputable
legal) cause
must be
one
of law-as the court
proceeded to admit
when it spoke of
applying
the
law
to the
facts. If imputable causation
is
not a question of law, why did the court allow the
citation of
precedents
on the
question? It
is
fine
that
the
jury can now
be
given
a
clear
direction
where
the
facts
are
undisputed. But
why
should
not
the jury be
given a
clear
direction on hypothetical facts where the
facts
are disputed? GLANVILLE WILLIAMS.
PRECEDENT ND THE
JUDICIAL
FUNCTION IN THE
HOUSE
OF
LORDS-DEBT IN
FOREIGN
MON Y
OF
CCOUNT
THE
decision of the House of Lords in
Miliangos
v. George
Frank
Textiles)
Ltd.
[1975]
3 W.L.R.
758
deals
with the problems
raised
by the decision in Schorsch Meier GmbH v. Hennin [1975] Q.B.
416
C.A.)
see [1975]
C.L.J.
215).
The instant case involved a contract for the sale of polyester
yarn, governed
by
Swiss law,
the
money of account and of payment
of which
was
Swiss francs. The Swiss respondent and unpaid seller
was
granted leave
to amend his
statement
of
claim
so as
to claim
payment in Swiss francs in the
light
of the decision in Schorsch
Meier at a
time when
the
appellants had agreed to submit to judg-
ment.
Bristow J. [1975] 2 W.L.R.
555) considered the
decision in
Schorsch
Meier
irreconcilable with that of the House of
Lords in
Re
United
Railways of Havana and Regla Warehouses Ltd.
[1961]
A.C.
1007;
he
turned
to Broome
v.
Cassell
Co. Ltd. [1972]
A.C.
1027 (H.L.(E.)) for
help, held
that
Schorsch Meier had been
decided
per incuriam and
followed Re
United
Railways of
Havana
instead;
he
was
reversed
by the Court of
Appeal [1975] Q.B. 487.
The unanimous view of the Court of
Appeal
in Schorsch Meier
that Article
106 of the Treaty of Rome obliged an
English
court
to give judgment in foreign currency to a creditor resident in an
E.E.C.
country
when
the currency
of
that country
was
the
currency
of account was
criticised
in [1975]
C.L.J.
215, 217 et seq. and
it
would appear
that
Lord Wilberforce (with whom Lords
Simon
of
Glaisdale
and Cross of Chelsea
agreed)
had either read that note or
had arrived, independently,
at
the
same,
sound conclusion.
On
the
other
hand, the majority of their Lordships (Lord
Simon
dissenting) approved the result
in
Schorsch Meier
by
abandoning
the breach date
conversion
rule
and
holding that
an English
court
could give judgment in
a
foreign currency
where
the contract
in question was
not
governed
by
English
law and where the currency
of account
was
that of
the country the law
of which governed
the
C L J
8/10/2019 [1976] CLJ 20
19/51
The
Cambridge Law Journal
contract
(or,
possibly,
that of
any
country other
than
the United
Kingdom).
Conversion date, which is
the
crucial date (see
[1974]
C.L.J. 11
14;
[1975] C.L.J. 215, 216) would be
that
date on which
the
court
authorised
the enforcement of
the
judgment in
terms of
sterling.
Apart from a nice question of
the debt/damages
distinction
(com-
pare
Lord Wilberforce at p. 771C-H
with
Lord
Simon
at p. 788C)
which
must
be
left
for another
time,
the
speeches,
and
in
particular
that
of Lord
Simon,
raise some
familiar and
some
important issues
about
precedent
and judicial law-making.
One
ought
by
now to
be
familiar
with
the
strictures
of
their
Lordships
in
Broome
v. Cassell Co. Ltd. (supra)
on the subject
of
attempts
by
the Court
of
Appeal to
avoid
decisions of
the
House
by describing
them
as
decided
per incuriam. While
their
Lordships
stated per curiam
that
only
they might reconsider
their
decisions,
thus
restating the
express
terms
of the
Practice
Statement
[1966]
W.L.R.
1234,
it is interesting
that
Lord
Simon thought
that
Bristow J.
had
adopted the
wrong approach in
not following
Schorsch
Meier on the
ground
that it had
been
decided per
incuriam. In his
Lordship's
opinion (p. 780D-E):
A court should
only hold a judgment to have been given per
incuriam
if
it
is satisfied
that
such judgment
was given
in
inadvertence
to
some authority and secondly,
that
if
the
court giving such
judgment had
been
advertent
to such
authority,
it
would have
decided otherwise than
it
did-would
in
fact
have applied
the
authority.
In
other
words,
Bristow
J. should have assumed
that the Court of
Appeal
had dealt satisfactorily
with Re United
Railways
of
Havana
in Schorsch Meier; otherwise a costly
appeal,
in which
the outcome
was
certain,
was
inevitable. Had Bristow
J. done
as he ought,
his
Lordship
thought that the leap-frog' procedure
under the
Administration of
Justice Act 1969,
Pt. II
might have been
invoked
to save
unnecessary expense.
What the
Court
of Appeal cannot do
to the House
of
Lords, puisne judges
cannot
do
to the
Court of
Appeal; Broome
v.
Cassell
Co.
Ltd.
(supra)
applies
at both levels
of
the hierarchy what
is
sauce
for the
goose
is
sauce
for the
gosling.
There is a neat comparison here
with one of the skirmishes in
the fundamental breach
saga; in Kenyon Son
Craven
Ltd.
v.
Baxter Hoare
Co
Ltd.
[1971] W.L.R.
519 Donaldson
J.
was
faced with the task of trying
to
reconcile
the Suisse Atlantique case
[1967]
A.C. 371 with Harbutt s Plasticine Ltd. v.
Wayne Tank
Co Ltd.
[1970] Q.B.
447 (C.A.) and did
so
by presuming
that the
latter
decision
must
be consistent with the former,
an application of
[ 97 ]
8/10/2019 [1976] CLJ 20
20/51
Case
and
Comment
it,
in fact, and
then
distinguishing
the case before him from
that
application.
Lord
Simon's
points about
constitutional
propriety
and
costs
were both met
in
that
there was no appeal,
but
in
view of
the
Master of
the
Rolls'
somewhat forceful opinion
in
Schorsch
Meier that
the reasons
for
the rule in
Re
United
Railways of
Havana
supra)
had
ceased
to
exist
([1975]
Q.B. 416, 425B)
it
is
easy to
sympathise with Bristow J.
in
his
misgivings.
Lord Simon
also
criticised
improper resort to
the maxim
cessante
ratione
legis,
cessat ipsa lex
as an argument for
not following
pre-
cedent.
There
is a
difference
between ducking a
binding precedent
and
declining
to extend
one analogically even
though
its
verbal
formulation
may suggest that it
could
be extended
logically.
Doubt-
less,
to characterise a
decision one way or
the other
may
involve
judgment-refusal
to analogise may amount to
ducking-but it
remains the
case
that it is
in
no
sense
desirable
to have the lower
courts ignoring precedent by
the
bogus use
of Latin
tags.
Much more important was
his
Lordship's
view, expressed at
great length that Re United Railways
of Havana
should
not be
overruled,
which demonstrates that, against
the background of
a
generally cautious
approach
to
the power asserted
in
the
Practice
Statement supra),
there are nevertheless important
differences
of
opinion
about
the
judicial function. Lord
Simon
has said a
good
deal about
this in
a
number of cases: see, e.g., Knuller
v.
D.P.P.
[1972]
3 W.L.R. 143; Jones
v.
Secretary of State for
Social
Services
[1972]
2
W.L.R.
210
(both noted
in [1972A]
C.L.J.
232);
Blathwayt
v. Cawley
Baron) [1975] 3 W.L.R. 684,
698H-699A;
D.P.P. for
Northern Ireland
v.
Lynch [1975] 2
W.L.R. 641, 670C-E
and 671H-
672B (see
also
per Lord
Kilbrandon at
p.
674B-D);
D.P.P.
v.
Withers [1974] W.L.R.
751,
762H-763B;
D.P.P. v. Shannon
[1974] W.L.R. 155,
193F-H; Taylor v.
Provan [1974]
A.C.
194,
221B-C.
In a
nutshell
his Lordship's argument in the instant
case
was
that
the question was too
complicated
to
be left to the
Law Lords.
He
thought that the judicial motto ought to
be, I
am
not
trained
to
see
the
distant
scene:
one step
enough
for
me (p. 784B)
and
quoted with approval the statement
of Lord Kilbrandon
in
ynch
supra):
If there is one
lesson
which has been
learned since the
setting
up of
the Law
Commission it is
this,
that
law
reform.
by lawyers
for
lawyers
(unless
in exceptionally technical
matters)
is not
socially
acceptable. An alteration
in
a fundament doctrine of
our law
could
not properly
be given effect
to
save
after
the
widest reference
to interests,
both social
and intellectual,
far
transcending those available
in your Lordships' House.
L J
8/10/2019 [1976] CLJ 20
21/51
The Cambridge Law
Journal
t
does seem
that
despite
criticism (see, e.g., Freeman (1973) 6
CurrentLegal
Problems
166,
190-191)
at
least
some
of
their Lord-
ships are inclined
to
subscribe to
the
late
Lord Reid's distinction
in
Pettit
v
Pettit
[1970]
A.C.
777,
794-795
between
lawyers'
law
and cases which
directly effect the lives and
interests of
large
sections of
the
community and
on which laymen are as well
able
to decide
as
lawyers.
t
is worth considering in
this context the
possibility
that
the reason for some so-called inflexible
decisions
(e.g.,
on the Race Relations Acts) reflect a feeling on the
part of
some
at least
of the judges that they
are being
asked to deal with
contentious issues without
enough
help
from
Parliament and
that
this is
a constitutionally improper division
of
labour.
This may be
far
wiser
than
critics realise; against a background of a
written
con-
stitution
and
Bill of
Rights the United States Supreme Court
did
a
great
deal
of
judicial
legislating whilst
Earl
Warren
was
Chief
Justice
without, in
the
judgment
of many,
asking with
sufficient
humility what law
could
do and what
the
limits on its functions
might
be. The
idea
that
anything
that
one chooses
to
characterise
as a
problem can be solved by
the
law
is
alarmingly naive.
Finally,
one
should
note
Lord Simon's
suggestion
that the
House
consider
sitting
en banc, at
least
where
the
overruling of a recent
decision of
your Lordships' house is
in
question
(p. 792C) and his
reiteration of his
idea
in Jones
v Secretary
of
State
for Social
Services
supra) that
prospective
overruling
be considered
so as
to
mitigate
the
effects
of
a
change
in
the
law.
DAVID FLEMING
JOINT TEN NCIES SEVER NCE
IN
Burgess
v
Rawnsley
[1975]
3
W.L.R. 99 the Court
of
Appeal
had
the opportunity to consider and
clarify
the
law relating
to
severance of
joint tenancies, recently the subject
of
a reserved
judgment of Walton
J.
in
Nielson-Jones v Fedden [1974]
3W.L.R.
583 commented upon in
[1975]
C.L.J.
28.
Mr.
Honick,
the
63-year-old sitting
tenant of
a
house
divided
into
two flats,
became friendly with Mrs.
Rawnsley,
a 60-year-old
widow,
having
met
her
at a scripture rally in
Trafalgar
Square. He
had the
opportunity
to buy
the house
for
the
very
favourable
price
of 850
and, upon talking
it
over, he and
Mrs.
Rawnsley
agreed to
put up the purchase price equally; she
would have the upper
flat
and
he would
retain the lower
flat.
In January 1967 the house
was con-
veyed
to
them jointly upon
trust
for sale
for themselves as joint
tenants. Mr. Honick's reason
was
that he
was
minded
to marry Mrs.
Rawnsley
and have the house as their matrimonial home,
though
[1976]
8/10/2019 [1976] CLJ 20
22/51
Case
and Comment
he had not mentioned this to her.
As
the trial
judge found, she had
never contemplated
marriage.
After
the purchase
of
the
house Mrs. Rawnsley made
it
clear
that
she
would
not marry
Mr. Honick
so
he
refused to
let
her
move
into the upper
flat.
In July 1968
he offered
orally
to
buy
her out
for
750
and
she orally
agreed. She then went
back on
her
agreement.
n
1971 Mr.
Honick
died and
the
plaintiff,
as
his
administratrix,
claimed
a half share
in
the
5,000 proceeds of sale of the house
to which
Mrs. Rawnsley
claimed she
was
wholly
entitled
under the ius
accrescendi
The
plaintiff first based her
claim on a
resulting
trust.
Lord
Denning
held
that,
since Mr.
Honick s purpose
in
buying the house
jointly
with
Mrs.
Rawnsley
was to
provide
a
matrimonial home
for
them
and since
Mrs. Rawnsley s
purpose was
to have
the upper
flat
to
live in,
the object
of each
party
had failed.
If
the
object
had
been
a
common
object which had failed there was no doubt that
a result-
ing
trust
for each
party
in
half shares would have arisen: the fact
that each had
a different
object which
had
failed should make
no
difference. Thus
the
plaintiff
was entitled
to half the
proceeds of
sale under a resulting
trust.
Lord
Denning s
brethren
disagreed on this
point. Browne
L
and Sir John Pennycuick considered that
a resulting
trust
could only
have arisen
if
both
parties
had
had a common object which
had
failed
and, in any case, considered
that
Mrs.
Rawnsley s object was
not
just
to
obtain
the
upper
flat
to
live in
but
to take an
interest
in
the
whole
house as
a beneficial
joint tenant,
as
expressed in
the
conveyance,
incidentally sharing
the
house in a
particular
manner.
Her object had
not,
therefore,
wholly failed.
With
respect, Lord
Denning s
view, placing the emphasis on
substance rather than
form,
seems preferable.
However,
all
three
judges were able to
hold
that the
plaintiff was entitled to half the
proceeds of sale on the footing that
the oral agreement for Mr.
Honick
to purchase Mrs. Rawnsley s
interest
for
750
amounted
to
a severance of
the
beneficial
joint
tenancy expressed
in the
con-
veyance:
it
showed