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8/10/2019 [1976] CLJ 20

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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

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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 ]

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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

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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

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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]

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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