Famous Cases : Nine Trials That Changed the Law [1 ed.] 9781906534158, 9781872870342

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Famous Cases NINE TRIALS THAT CHANGED THE LAW Brian P Block and John Hostettler have written several books and many articles on facets of law, lawyers, politics and social history, both jointly and individually, including as regular contributors to the weekly journal Justice ofthe Peace. This is their third book as co-authors.

WATERSIDE PRESS

Famous Cases NINE TRIALS THAT CHANGED THE LAW Brian P Block and John Hostettler have written several books and many articles on facets of law, lawyers, politics and social history, both jointly and individually, including as regular contributors to the weekly journal Justice ofthe Peace. This is their third book as co-authors.

WATERSIDE PRESS

ii

Famous Cases

FalllOUS Cases Nine Trials that Changed the La\\' Published 2002 by

WATERSIDE PRESS DomumRoad Winchester 5023 9NN Telephone 01962 855567 Fax 01962 855567 E-mail: [email protected] Web-site: watersidepress.co.uk ISBN 1 87287000 0

Copyright © 2002 Brian P Block and John Hostettler. All rights reserved. No part of this publication may be reproduced, stored in any retrieval system, or transmitted, in any form or by any means including over the Internet or by photocopying, recording or otherwise, without the prior permission of the authors and publishers (to whom the exclusive reproduction rights for this volume have been assigned). Extracts from the law reports are the copyright of the Incorporated Council of Law Reporting for England and Wales in the case of the Weekly Iilw Reports, Iilw Reports and Appeal Cases. and the Butterworths Division of Reed Elsevier (UK) Ltd in the case of the All England Iilw Reports (see also the Acknowledgement on pag~ iv). Printing and binding Antony Rowe Ltd., Eastbourne Cover design Waterside Press Also by the same authoIS: Brian P Block

Justice Matters An Introduction to Judicial Decision-making The Pain and the Pride: Life Inside the Colorado Boot Camp John Hostettler

The Politics ofCriminal Law: Reform in the Nineteenth Century Tlwmas Wakely: An Improbable Radical The Politics ofPunishment Politics and Iilw in the Life ofSir James Fitzjames Stephen Tlwmas Erskine and Trial by Jury Sir Edward Carson: A Dream too Far At the Mercy ofthe State: A Study in Judicial Tyranny Sir Edward Coke: A Forcefor Freedom Lord Halsbury As Co-authors

Hanging in the Balance: A History ofthe Abolition ofCapital Punishment in Britain Voting in Britain: A History ofthe Parliamentary Franchise

Nine Trials that Changed the Law

Famous Cases NINE TRIALS THAT CHANGED THE LAW

Brian P Block JP, BA, BPharm, MA, LLM, PhD, CBiol, MIBiol

John Hostettler JP, BA, LLB (Hons), LlM, PhD (London), Solicitor of the Supreme Court

WATERSIDE PRESS

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Famous Cases

Acknowledgem.ent The authors wish to record their grateful thanks to the Incorporated Council of Law Reporting for England and Wales for pennission to use extracts from the Weekly Law Reports, Law Reports and Appeal Cases. The extracts from judgments reported in the All England Law Reports are reproduced by kind pennission of the Butterworths Division of Reed Elsevier (UK) Ltd to whom the authors also extend their grateful thanks.

Nine Trials that Changed the Law

CONTENTS Acknowledgment iv Preface vii List of Cases viii

Part I: Introduction CHAPTER 1: ORIGIN AND GROWTH OF THE COMMON LAW 9 Unwritten law 9 Early'laws 9 The Lawyer King 10 Rise of the legal profession 11 Precedent 12 Court of Chancery 13 Discord 14 The Star Chamber 15 The High Commission 16 Trial by jury 17 Statutes 17

Part 11: Criminal Trials CHAPTER 2: GEORGE JOSEPH SMITH AND IlJHE BRIDES IN THE BATH" 20 Makin's Case 20 The Privy Council hearing 21 Smith's Case 23 Thefacts 23 The appeal 25 Aftermath 30 Straffen 30 Pragmatic approach 31 A new precedent 32

CHAPTER 3: WOOLMINGTON'S CASE 34 Presumption of guilt 34 Thefacts 34 The first trial 35 The second trial 37 The first appeal 37 Woolmington v. DPP 38 No presumption of murder 48 The "beyond reasonable doubt" principle 50 Aftermath of Woolmington 50

CHAPTER 4: GYPSY JIM SMITH 52 Thecase 52 Malice aforethought 53 DPP v. Smith 56 Aftermath 62

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Famous Cases

Part Ill: Civil Cases CHAPTER 5: DONOGHUE v. STEVENSON 66 Theclaim 66 Judgments 67 The "neighbour" rule 68 Explosive effects 73

CHAPTER 6: LORD DENNING'S "HIGH TREES" CASE 76 Thefacts 76 Legal Argument 77 The judgment 78 Significance 80

CHAPTER 7: ROOKES v. BARNARD 81 The facts 81 The case 82 The first appeal 83 The House of Lords 86

CHAPTER 8: THE MAREVA INJUNCTION 92 Nippon Yusen Kaisha v. Karageorgis 92 Mareva Compania Naviera v. International Bulkcarriers 93 Law reform 96

CHAPTER 9: WEDNESBURY UNREASONABLENESS 99 Associated Provincial Picture Houses Ltd v Wednesbury Corporation 99 The appeal lOO What the case settled 104

Part IV: International Law CHAPTER 10: THE TRIALS OF AUGUSTO PINOCHET 106 The legal background 106 Background to the Pinochet case 107 The arrests 108 Divisional Court hearing 108 First House of Lords appeal 109 The problem 122 The petition 123 Second House of Lords appeal 125 Historic Decision 132

Index 34

Nine Trials that Changed the Law vii

Preface This book should prove of interest to lawyers and law students, and to members of the public interested in important, and often exciting cases, that changed English law in the twentieth century. They include trials of murder, cases involving the sale of goods,

the law of contract and "consideration", trade unions, injunctions, reasonableness in the conduct of public authorities and the domestic and international repercussions of the Pinochet case in regard to torture and crimes against humanity. All the cases involve the common law, and many of them address its inter-relation, and sometimes conflict, with equity, statute law and precedent. They also reveal how the judges themselves sometimes "make" the law. To give an historical background and a framework on which to explore the cases that follow we have included a preliminary outline of the origins and growth of the common law. Within the sub-divisions of criminal law, civil cases and international law we have introduced the cases in date order commencing with George Joseph Smith's infamous and startling "brides in the bath" trial which for the first time introduced similar fact evidence to establish system where there was no physical prima facie case against the accused. The trial of Reginald Woolmington is famous for establishing that, again for the first time, in trials for murder the prosecution has to prove its case "beyond reasonable doubt" - instead of the accused having to prove his or her innocence. Here we have given not only the full facts about Woolmington shooting his wife but background details about the man himself. This applies also with George Joseph Smith and Gypsy Jim Smith. And in the latter case we have included· examples of the distaste generated by the decision of the House of Lords to overturn the appeal court judgment and uphold the guilty verdict. Donoghue v. Stevenson is the well-known case of the snail in the ginger- beer bottle. Its emphasis on the duty of care to consumers who were not protected by a contractual relationship exploded into other realms, including negligent statements, the liability of the Home Office for damage caused by runaway Borstal boys and inadequate inspection of building works in progress. "Products" supplied were extended from food and drink to include vehicles, repair work, lifts and hair-dyes. As Lord MacMillan said in his judgment in Donoghue "The categories of negligence are never closed". The right of trade unionists to strike is explored in Rookes v. Barnard, and the implications for the future in regard to torture and crimes against humanity are examined with the Pinochet case. All the cases give lengthy extracts from the judgments which, at first sight, may appear to be somewhat prolix. But their quotation in extenso is desirable in order to reveal the force of argument behind the decisions in these change-promoting law cases, the subtlety of the judges' reasoning and the fascinating role of the judges in finding ways of overthrowing existing legal precedents to bring the law into tune with changing times. We hope readers will find them instructive and also take pleasure in reading them. Brian P. Block

John Hostettler March 2002

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List of Cases AlIen v. Flood(1898) 87 Allsop v. North Tyneside Metropolitan Borough Council (1992) 105

Anns v. Merton London Borough Council (1978) 73

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1947) 98 Bates v. Batey & Co. Ltd. (1913) 67 Beddow v. Beddow (1878) 94 Berry v. Berry (1929) 77 Birmingham & District Lane Co. v. London & North Western Rly. Co.(1888) 79 Blacker v. Lake and Elliot Ltd. (1912) 67 Boyle and Merchant (1914) 26 Bromage v. Prosser (1825) 45 Buttery v. Pickard (1946) 78 Candler v. Crane Christmas & Co. (1951) 73 Central London Property Trust Ltd. v. High Trees House Ltd. (1946) 76 Combe v. Combe 1951) 80 Cory Lighterage, Ltd. v. TGWU. (1973) 91 DPP v. Boardman (1975) 30 v. Majewski (1976) 49 v. Smith (1961) 55 Donoghue v. Stevenson (1932) 66 Duke ofBrunswick v. King ofHanover (1848) 111 Earl ofOxford's Case (1615) 14 Edinburgh & Dalkeith Rly v. Wauchope (1842) 18 Farr v. Butters (1932) 73 Fenner v. Blake (1900) 78 Foakes v. Beer (1884) 79 Frankland and Moore v. R. (1987) 64 Grant v. Australian Knitting Mills (1936) 74 Harman v.Butt (1944) 99 Heaven v. Pender (1883) 68 Hedley Byrne & Co. Ltd. v. Helier & Partners Ltd. (1964) 74

Hill v. C.A. Parsons Ltd (1971) 15 Home Office v. Dorset Yacht Co. Ltd. (1970) 73 Hughes v. Metropolitan Rly. Co. (1877) 79 ]ones v. Randall (1774) 13 ]orden v. Money (1854) 78 Le Lievre v. Gould (1893) 68 Lister & Co. v. Stubbs (1890) 94 London Tramways Co. v. London County Council (1898) 13

Longmeid v. Holliday (1851) Lumley v. Gye (1853) 86

Makin v. Att-Gen. ofNew South Wales (1894) 20 Mancini v. DPP (1942) 49 M'Naghten's Case (1843) 49 Mareva Compania Naviera SA v. International Bulkcarriers SA (1975) 93 Mercury Energy Ltd. and Electricity Corporation of New Zealand Ltd.(1994) 105 Miller v; Minister ofPensions (1948) 104 Nash v. Armstrong (1861) 77 Newbold and Another v. Leicester City Council (1999) 104 Nippon Yusen Kaisha v. Karageorgis (1975) 92 Noor Mohammed v. R. (1949) 30 North London Rly. Co. v. Great Northern Rly. Co. (1883) 95

Plasticmoda Societa per Azioni v. Davidsons (Manchester) Ltd. (1952) 80 Rasu v. Perusahaan (Pertamina) (1978) 97 Re: Pinochet (1999) 123 Re: William Porter & Co. Ltd. (1937) 77 R. v. Ashman (1858) 60 v. Bond (1906) 30 v. Bone (1968) 49 v. Bow Street Metropolitan Stipendiary Magistrate & Others, ex parte Pinochet Ugarte (1998) 109 v. Carr-Briant (1944) 51 v. Christie (1914) 26 v. Cox (1818) 60 v. Cunningham (1957) 62 v. Cunningham (1982) 53 v. Davies (1913) 47 v. Faulkner(1877) 62 v. Gill (1963) 49 v. Gough (1993) 125 v. Greenacre (1837) 46 v. Hepworth (1955) 50 v. Lawrence (1933) 34 v. LobelI (1957) 49 v. Lumley (1911) 58 v. MackalIey (1611) 45 v. McPherson (1957) 49 v. Miller (1951) 60 v. Moloney (1985) 64 v. Morrison (1940) 50 v. Philpot (1912) 58 v. Prince (1943) 51 v. Serne (1887) 63 v. Smith (1916) ("Brides in the Bath case") 20 v. Smith (1960) ("Gypsy Jim") 53 v. Steane (1947) 59 v. Straffen (1952) 31 v. Summers (1952) 50 v. Vamplew (1862) 58 v. Vickers (1957) 54 v. Ward (1956) 55 Rookes v. Barnard (1961) (HL 1964) 81 Salisbury (Marquess) v. Gilmore (1942) 79 Stewart v. Lawton (1823) 17 Theatre de Luxe (Halifax) Ltd. v. Gledhill (1915) 99 Tool Metal Manufacturing Co. v. Tungsten Electric Co. Ltd. (1955) 80 Trendtex Trading Corporation. v. Central Bank ofNigeria (1977) 106

Webb v. R. (1994) 125 Woolmington v. DPP (1935) 38

PART I: Introduction CHAPTER 1

Origin and Growth of the Common Law The common law of England emerged in the twelfth century during the reign of Henry 11, known to history as the "lawyer king". Strictly speaking it is that part of the law formulated, developed and administered by the common law courts as distinct from statute law. Historically, it has also to be distinguished from equity and what passed for law in the royal prerogative courts such as the Star Chamber and ecclesiastical courts like the High Commission. Unwritten law The common law is said to be based on judicial decisions from time immemorial (Le. from 1189), which themselves had their roots in earlier traditions and customs which continue to inform our national consciousness. It remained unwritten until enterprising lawyers began to record leading cases in law reports and it is still referred to as unwritten law in order to distinguish it from laws enacted by Acts of Parliament. In modem times, of course, the law is dominated by a vast number of statutes but if they do not cover a particular case recourse is still had to case law which, in addition to its deep-rooted and constitutional role as part of the Rule of Law, exercises a considerable function in the interpretation of statutes. In a wider context, the common law is now often seen as including both judgemade law, equity and statutes. In this sense we refer to all law in the United Kingdom, the United States of America and Australia, for example, as being AngloSaxon common law to differentiate it from the Civil Law in countries of the European continent. Nevertheless, in its strict meaning the common law still retains a wide influence on our lives although it may be in the process of being fundamentally changed by European law and directives for the first time in our history. In this book, in considering landmark cases, we are looking at the law as expounded by the English courts and it is in this sense that we are dealing with the common law in its traditional meaning. Early laws It is an historical curiosity that the unwritten common law had its origin in the written codes of such Anglo-Saxon kings as Ine (689-725) and Alfred the Great (875900). However, to some extent, even their laws had their genesis in the earlier customs of the areas over which the kings ruled. Ine, for example, issued an elaborate digest of some 76 west Saxon laws in the year 689 A.D. which comprised both ancient customs and, in line with changing times and the growth of the powers of the Crown and the church, new rules of conduct and punishments. The age-old and primitive private vengeance by blood-feud was still countenanced but was beginning to be seen as an interference with public peacekeeping and Ine endeavoured to curtail it. Feuding parties were encouraged to cease seeking blood

10 Famous Cases

and agree instead to a price to be paid to a victim or his or her family in compensation. To cover cases where the injured party in a dispute could not agree to an amount in restitution the king set a tariff in accordance with the sufferer's social status. This was known as wergild - a man's value. In many respects the digest contained laws that were similar to the decrees of the kings of Kent. Alfred, for his part, enacted some 77 decrees with numerous sub-clauses. The preamble to his code contained a translation of the Ten Commandments into English, numerous passages from the Book of Exodus, as well as a brief account of apostolic history. Ancient customs were affirmed including permitting a fugitive from justice to enjoy sanctuary in a church and many of the laws of earlier kings such as Ethelbert, Ine and Offa were openly approved and restated with new additions. And Alfred proudly proclaimed to all the Wessex hundreds and shires that there was not to be one law for the rich and another for the poor, an ideal rather remote from reality. With the invasion of England by William the Conqueror in 1066 it might have been expected that he would impose on the country the legal system of Normandy. But he claimed the throne of England by descent from Edward the Confessor as well as by conquest as Duke of Normandy and Norman law was in many respects inferior to that of England. As a consequence, in the main, he confirmed the existing laws of his new kingdom. In only three areas of law did he make any substantial changes. First, he separated lay and ecclesiastical jurisdictions by providing that the clergy (a powerful force at the time) should no longer hold spiritual pleas in the secular hundred courts or bring forward any such case for the judgment of laymen. From then onwards a cleric accused of offences such as adultery, usury, perjury and defamation had merely to make amends before a bishop in accordance with canon law until Archbishop Lanfranc established church courts in 1077. Secondly, the new king introduced from Normandy trial by combat as an alternative to the English mode of trial by ordeal. And thirdly, William abolished capital punishment. This was not out of humanitarian concern about the penalty of death, however, since his brutal character is well documented and he replaced execution with blinding, castration and other mutilations to the face and body in the belief that people who were thus maimed being seen at large would serve as a more lasting warning to potential criminals than death. That this was his motive was confirmed when Lanfranc found it desirable to disassociate himself from such a doctrine at a synod in 1075. Otherwise, after the Conquest the laws remained as they were before and were largely enforced in the local communal courts of the hundreds and shires. The lawyer king It was subsequently in the strong administration of the Conqueror's grandson Henry 11 (1154-89) that the process began of unifying the judicial system. Henry constantly experimented and the fruits of his centralisation should not be seen as resulting from pre-conceived ideas as to how the legal system should grow. But his measures were crucial in creating and administering a law common to the whole realm. He established a permanent body of professional judges and increased the number of circuits of itinerant judges that lasted until 1972 when Assizes and

Origin and Growth of the Common Law 11

Quarter Sessions were replaced by Crown Courts. He also introduced pleas of the Crown which were grave capital offences alleged to have been committed "against the peace of our Lord the King, his Crown and his dignity". This established the Crown's exclusive jurisdiction over all serious crimes which became triable only in the king's courts as distinct from the local hundred and shire courts although,. of course, the king's justices sat in the shires on their circuits. Hemy further sowed the seeds of the new mode of trial by jury. This was seen as a form of royal justice and as the jury had no place in the communal courts the latter were soon to begin their long decline. From this time onwards a crime was regarded not merely as a wrong against the victim but against the nation and with the circuits the centralization of royal justice was adapted to the need for local investigation and trial. At first, in 1166, Henry sent two senior judges from the royal household on tours of the whole country to try prisoners held in the gaols awaiting trial and to ensure that the law was enforced. Following this experiment the itinerant judges, who came to number between 20 and 30, presided over six circuits into which the country was divided. Also under Henry the central royal court, the Curia Regis known as "the Bench", began to sit regularly at Westminster. In 1209 King John discontinued the sittings of the Bench but they were restored in 1214 and in the following year clause 17 of Magna Carta ordained that "ordinary lawsuits shall not follow the royal court around but shall be held in a fixed place", which was usually Westminster. But by no means all litigants and witnesses could afford the time or expense to travel across country to Westminster. Hence the circuits served a purpose in addition to the trial of alleged criminals and often cases would take place in the shires with a record of them sent to Westminster where the decision would be made. By this time the eminent jurist and historian Frederic Maitland recorded that the "Court shows no cleft, though it does show a well-marked line of cleavage".1 The royal court, held in the king's presence, did not sit during the minority of Henry III but was reconstituted in 1234 when there commenced a series of rolls known as De Banco rolls recording the cases of judges sitting at Westminster and determining common pleas, as distinct from those known as the Coram Rege (i.e. in the presence of the king). All the rolls were written on pieces of parchment stitched together to form a long continuous document. They were rolled up when not in use and can still be consulted at the Public Record Office. From that time there slowly developed the Court of King's Bench sitting apart from both the king and his Council and a separate Court of Common Pleas dealing with ordinary civil suits between subjects, each with its own judges and officers. By 1272 a separate chief justice was appointed for the Common Pleas and the court ceased to try criminal cases. However, under the rubric of royal interest the King's Bench continued to deal with some common pleas. Rise of the legal profession Originally the judges were the king's clerks but by the reign of Edward 11 (13071327) of the 19 judges only eight were clerks and the others were practising lawyers. As royal legal jurisdiction expanded, Edward I (1272-1307), known as

1

Maitland. I. 5.5. xxii.

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the "English Justinian" after the outstanding codifier of Roman law, needed and encouraged the growth of a legal profession. Control over the profession was given by the king to his judges and the serjeants-at-law who were selected by the monarch on the recommendation of the judges. Furthermore, only the serjeants, who as leading counsel were originally known as servants of the king, could be elevated to the bench. They wore in court a white silk cap known as a coif which Sir Edward Coke later observed was like the helmet of Minerva, the goddess of counsel, and he fancifully likened its four corners to science, experience, observation and recording. Their arguments in court, and the decisions of the judges, were summarised in the Year Books, which reported cases from 1290 to 1535 when Henry VIII had them discontinued, and thus between them the serjeants and judges "made" the common law. According to Sir John Fortescue the serjeants were the wealthiest advocates in the world. 2 The ordinary lawyers were divided, as they still are, between pleaders (later to be called barristers) and attomeys (afterwards known as solicitors). It was from the ranks of pleaders that the serjeants were drawn. In lively courtroom scenes pleaders proved to be vigorous advocates and encouraged the practice of citing and distinguishing earlier cases. They also played a vital role in teaching students at the four Inns of Court and the ten lesser Inns of Chancery. Of great significance for the survival, growth and independence of the common law, in face of the revival and potential penetration of Roman law, was the fact that, unlike students at the universities, the students at the Inns were taught English law based to an ever-increasing extent on precedents in earlier cases. And only those students from the Inns who were called to the Bar were allowed by the judges to practise in the courts. Precedent The rules of precedent are an essential element in the common law. Although not fully established in their present form until the nineteenth century their origins go back a long way. As early as the thirteenth century our first great judge and jurist, Henry de Bracton, wrote "If any new and unwonted circumstances, hitherto unprecedented in the realm, shall arise, then if anything analogous has happened before, let the case be adjudged in like manner".3 To give effect to this, his Note Book contained a collection of some 2,000 decided cases. On the other hand, these were not exactly binding decisions, since judges at the time were free to ignore them, but they had persuasive influence in an endeavour to achieve consistency. In those days adequate law reporting, which is essential for a system of binding precedents, was haphazard but a watershed occurred with Sir Edward Coke's famous Reports which he published in the seventeenth century both to provide a permanent record of leading cases and to establish a model of accurate reporting. It may be said that from this time the unwritten law was committed to writing - although still called "unwritten" to distinguish it from statute law. It was in the mid-eighteenth century, however, that the rules of precedent began to become an integral part of the common law system. Lord Mansfield, in his long tenure as chief justice of the King's Bench from 1756 to 1788, pressed for certainty and consistency in judicial decision-making. Laws being once established, 2 3

De Laudibus. 124. 1470. De Legibus. f. lb.

Origin and Growth of the Common Law 13

he said in 1782, " ... it is better they should stand erroneous, than by contrary judgments to overturn what has passed ... The object of the law is certainty, especially such parts of the law as are of extensive and general influence, which affect the property of many individuals, and which inflict pecuniary penalties; which create personal disabilities; and which work forfeitures of temporal rights".4 Nevertheless, he did not favour indiscriminate use of precedents, declaring that the law depended upon principles which precedents served to illustrate.5 In modem times, with an established system of law reporting, the rules of precedent mean that each court is bound by the decisions of courts above it and the Court of Appeal is bound by its own decisions. Decisions of the House of Lords are absolutely binding on all lower courts and in 1898 it decided that it was itself bound by its own past rulings on questions of law. In explaining the decision Lord Chancellor Halsbury said, "Of course I do not deny that cases of individual hardship may arise, and there may be a current of opinion in the profession that such and such a judgment was erroneous; but what is that occasional interference with what is perhaps abstract justice, as compared with the inconvenience - the disastrous inconvenience - of having each question subject to being re-argued, and the dealings of mankind rendered doubtful, by reason of different decisions, so that in truth and in fact there would be no real final court of appeal?" 6 However, 68 years later under the guidance of Lord Chancellor Gardiner, the House of Lords issued a practice statement on 26 July 1966 in which it declared that too rigid adherence to precedent might lead to injustice in a particular case and unduly restrict the proper development of the law. It decided, therefore, to modify the previous practice and " w hile treating former decisions of the House as normally binding, to depart from a previous decision when it appears right to do so". This, of course, can assist the common law to continue to change with the times. However, since 1966 this has occurred very rarely and therefore has had little actual impact on common law. Furthermore, in introducing the statement the Lord Chancellor emphasised the·need to maintain certainty in the criminal law, where people may have been convicted on the basis of decisions in earlier cases. But this puts consistency before justice and examples will be seen later. 7 Court of Chancery Originally, the common law judges had wide discretionary powers but as they became more fettered by their own rules and strict laws were causing injustice, the Lord Chancellor began ,to step in to grant relief to litigants who petitioned him where it appeared to be equitable to do so. Thus began an extension of the prerogative of mercy and equity which was exercised by the monarch. At the time of Richard 11 (1377-99) and on subsequent occasions the House of Commons, alarmed at the flexibility of equity, petitioned the king to ensure that the chancellor, who acted as judge and jury, did not go outside the common law. It was all to no avail, however.

4

5 6

7

Quoted by C.K. AlIen. Law in the Making. 214. 1969. [1774] Jones v. Randall. Cowp. 37. London Tramways Co. '0. London County Council. AC. 375. It must also be viewed in the light of the Human Rights Act 1998 and the European Convention on Human Rights and Fundamental Freedoms, now, in effect, part of English law by virtue of that Act. In particular, Article 6 guarantees the right to a fair trial to each and every citizen.

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The Chancery was not in origin a court of law at all but the secretariat of the chancellor. It took its name (Cancellaria) from the latticed screen behind which its many clerks worked. However, the chancellor's decision to accept petitions to be resolved on an equitable basis led to the creation of a separate Court of Chancery, of which Lord Chancellor Ellesmere, in the Earl of Oxford's Case in 1615/ said, "The cause why there is a Chancery is, for that men's actions are so diverse and infinite, that it is impossible to make any general law which may aptly meet with every act, and not fail in some circumstances". And further, "When a judgment is obtained by oppression, wrong and a hard conscience, the chancellor will frustrate and set it aside, not for any error or defect in the judgment, but for the hard conscience of the party". However, the rivalry over jurisdiction between Chancery and the judges of the common law courts resulted in frequent disputes between them until the re-organisation of the courts under the Judicature Act of 1873. Discord By the reign of James I (1603-25) the disputes between the common law courts and the Court of Chancery centred around the great exponent and supporter of the common law, Sir Edward Coke. The confrontation was, in fact, a reflection of the struggles between Crown and Parliament which led to the civil war. Coke, as chief justice of the King's Bench, challenged Lord Chancellor Ellesmere, formerly Sir Thomas Egerton, over the jurisdiction of Chancery to interfere with the common law courts by re-opening cases after judgment at law. In fact, Chancery could quite properly grant relief against wrongdoing where the common law gave no remedy, but Ellesmere was encouraging recourse to Chancery after judgment had been given in the common law courts, thus elevating Chancery to a sort of primordial appeal court. Since many unsuccessful suitors desired a second bite of the cherry this caused a serious backlog of thousands of cases. And, in the memorable, and perhaps droll, words of John Selden, equity was "a roguish thing", governed by the chancellor's conscience, the measure of which was "his foot".9 The King's Bench therefore decided that where a decision had been reached in a common law court the Chancery should not intervene. There could then be no appeal, said Coke, except to the High Court of Parliament. In effect Coke, who equated the common law with the Rule of Law, was endeavouring to prevent any appeal from the decisions of the common law courts, including his own. His efforts to destroy the role of Chancery as a de facto appeal court failed but we had to wait another 350 years before a real appeal court was established, the High Court of Parliament being hardly comparable. Ellesmere was a fervent royalist who proclaimed: "the monarch is t~e law" and likened James I to a Roman emperor. "Our constitution", he said, "is to be obeyed and reverenced, not bandied by persons sitting in ordinaries drowned with drink, blown away with a whiff of tobacco". Coke argued that Chancery's actions were contrary to the statute 27 Edw. III c.1. which provided that any person who sued in any other court to defeat or impeach the judgments given in the king's court should be outlawed unless they withdrew. He then began to use habeas corpus to release prisoners committed (not always unreasonably) by 8 9

w. & T. 617 and 619. John Selden. Table Talk. 43. 1927.

Origin and Growth of the Common Law 15

Ellesmere for contempt and encouraged them to prosecute their opponents for impeaching the judgments of the king's courts. However, when Coke took up what proved to be a weak case the king referred the dispute to Sir Francis Bacon, the attorney-general, and he, an old enemy and rival of Coke, referring to the Court of Chancery as "the Court of your majesty's absolute power" predictably supported Ellesmere, arguing that the statute had referred only to ancient appeals to the papal court in Rome. Indeed, Bacon went further and told .King James that cases should often be drawn from the ordinary courts and sent for determination by the chancellor who was "ever a principal counsellor and instrument of monarchy, of immediate dependence upon the king; and therefore like to be a safe and tender guardian of the regal rights".lO Bacon's international and lasting fame rests upon his works of philosophy and political theory but he was a political opportunist who, when Lord Chancellor, was found guilty of accepting bribes and was imprisoned in the Tower of London. Whilst he was attorney-general, however, the king willingly accepted his advice and intervened against Coke whose endeavours on this occasion failed. He was to try again in the Parliament of 1621 when he introduced a bill to subordinate Chancery to the co~on law judges, but in this too he was unsuccessful. Later, Cromwell also attempted to abolish Chancery by statute but he too failed and although Chancery was to be plagued by delays such as those pictured by Dickens in Bleak House equity was to gain increasing respect until, by the Judicature Acts of 1873 and 1875, both Chancery and the common law courts were replaced by Divisions of the High Court. Where there was a conflict between the rules of equity and those of common law, equity was to prevail. This has meant little in practice, however, although some judges, particularly Lord Denning, endeavoured to fuse the two so that according to Denning "it is the common lawyers who now do equity."n

The Star Chamber This was the King's Council sitting as a court until 1540 when it acquired a separate existence. It was then composed of the Lord Chancellor, the chief justices of the King's Bench and the Common Pleas, and privy councillors. Whilst the judges of the King's Bench exercised criminal jurisdiction, as well as conducting some civil business, those of the Common Pleas dealt with ordinary civil actions between subject and subject. The presence of the senior judges of the realm at the hearings of the Star Chamber came from it originally being perceived as ancillary to the common law courts, and in its early life it was indeed highly regarded as a body that dispensed justice with speed and flexibility. The Star Chamber took its name from the golden stars which garnished the roof of the building in which it sat across New Palace Court from Westminster Hall. It met twice a week in term time, on Wednesdays and Fridays - "star-days" as they were called. It punished conspiracy, false accusations (except its own), riots, forgery, bribery and intimidation, and often brought to book powerful magnates who were skilful in evading the law. However, in time it came to wield immense powers in substituting the will of the king for the common law. It also had the dangerous power to admonish "wayward" justices of the peace and fine and imprison juries whose verdicts it did not accept. 10

11

James Spedding. Letters and Life of Sir Francis Bacon. v. 236. 1874. [1971] Hill v C.A. Parsons Ltd. 3 All ER 1359.

16 Famous Cases

Additionally, using the law of libel, it kept a close eye on and control over the recently invented printing of books. The Star Chamber had come into existence in the reign of Henry VIII (150947) to check abuses but as a prerogative court acting on behalf of powerful monarchs it gradually became an instrument of arbitrary rule, even flouting writs of habeas corpus issued by the common law courts. Finally, it made itself feared and hated as a ruthless arm of royal power transcending the common law. It came more and more to rely uncritically on unscrupulous informers and with its ex officio oath could compel accused people to incriminate themselves. However, it was not a court of record, Le. a court whose proceedings are enrolled for future memory and testimony, although this did not inhibit it from extending the criminal law and constantly imposing crippling fines and imprisonment for life despite Coke's contention that only a court of record had such power. It could not punish by imposing the death penalty but it authorised torture in the Tower of London and in order to terrorize the people it frequently imposed penalties such as whipping, branding, cutting off ears, the pillory, slitting of nostrils and having an accused person tied in a sack and thrown to the dogs. During the reign of Queen Elizabeth I alone (1558-1603) 187 priests are said to have been put to death after suffering torture. Such punishments were entirely at the whim of members of the Chamber wholly unrestrained by juries or by statutory or common law authority. They examined in private those brought before them as witnesses and their primary rationale was not to inquire into guilt or innocence but, however unjustly, to uphold royal absolutism. The Chamber was eventually abolished by the Long Parliament in 1640 as being "bloody, wicked, cruel, barbarous and tyrannical". The High Commission This was another prerogative court, created by Elizabeth, and under the early Stuarts it worked closely with the Star Chamber. As an ecclesiastical court Elizabeth desired it to guard public morals and maintain the royal supremacy. An example of both functions being used in tandem is furnished by Traske's Case in 1618 where a Jew observing the Jewish Sabbath and avoiding pork was sentenced for having opinions tending to sedition and commotion and scandalising the king and the bishops. The Commission aggravated old scars in its disputes with the common law judges, of whom Coke was the most active in issuing prohibitions against its judgments. Its procedures, too, aroused fierce passions, with Puritans claiming that it was tyrannical, brutal and oppressive and an enemy of liberty and truth. As with the Star Chamber a person accused before it had to take the ex officio oath which in effect required him or her to convict himself or herself by confessing to an accusation of an unspecified crime levelled by an undisclosed informer. A refusal to take the oath was treated as a plea of guilty and the hapless prisoner was handed over to the Star Chamber for punishment. Using the Commission as a weapon, Archbishop Whitgift's campaign against Puritans in the reign of Elizabeth was likened to the Spanish Inquisition. It comes as no surprise then that when Charles I was obliged to call the Long Parliament in 1640 it promptly abolished not only the Star Chamber but also the High Commission

Origin and Growth of the Common Law 17 as well as other prerogative and ecclesiastical courts, and brought torture to an end. Trial by jury Like so much else in Christian countries the ancient trial by ordeal, with red-hot iron or boiling water, was of heathen origin but had been adapted to the use of the church as giving a verdict on guilt or innocence from the Almighty. It was always accompanied by a religious ceremony. However, after serious theological questioning it was stopped by the church after the fourth Lateran Council in 1215 and consequently abolished in England in 1219. The question that then arose was what should replace it. Henry III was still a boy and left to themselves the judges hesitated. In much of Europe confessions were regarded as the best proof of guilt and they were usually extracted by torture and in secret trials. In England, after some dithering, during which time many prisoners were either freed or temporarily imprisoned without trial, the judges began to offer the accused the opportunity of having 12 men from the presenting jury, made up of local men who decided if a person should stand trial, determine his guilt or innocence. The need for torture was by-passed and the decision turned from the judgment of God to the judgment of mortals. Standing before the court the accused would be asked in what manner he or she would be tried. If the accused person declined to answer he or she would be imprisoned and subjected to the torture of peine forte et dure by which they were pressed to death under heavy weights. On the other hand if he or she answered "by my country" the jury would be assembled and would reach a verdict on the basis of their own knowledge and that of their neighbours. For the first time they acted as witnesses providing information in a trial, and initially the majority would prevail. Only in 1367, in a leading case,12 did the courts reject earlier precedents and hold that a majority verdict was void. The jury were henceforth to provide the same unambiguous verdict as the ordeal had done. There was no question of a presumption of innocence which was a concept still unknown. And although, in modem times, jurors have long since ceased to be witnesses, and juries are made up of men and women of all classes, and in certain circumstances a majority verdict is permitted, the original concept of trial by jury remains with us.

Statutes In medieval times it was common to combine a number of different enactments as chapters of a single statute as, for example, in the first Statute of Westminster in 1275. Later a separate statute was passed for each major topic and was referred to by the regnal year of the sovereign and not, as before, to the place where Parliament had been meeting. However, statutes did not then have the importance that is attached to them in modem times and there existed a doctrine whereby a court was not bound to apply a statute if it could be shown that it had never been enforced. For more than five centuries until the early nineteenth century13 this curious principle enabled judges to frustrate legislation that they considered undesirable. It was believed that statutes should conform to the common law. Indeed, in Bonham's 12

13

Year Books. Mich. 41. Edw.3 31 pI. 36. See Stewart v. Lawton [1823] 1 Bing. 374.

18

Famous Cases

Case in 161014 Sir Edward Coke, as chief justice of the Common Pleas, went further and declared that, "it appears in our books that in many cases the common law will control Acts of Parliament and sometimes adjudge them to be utterly void; for when an Act of Parliament is against the common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void". No judge in England today would subscribe to such a view and Coke himself changed his own opinion two years later in the case of Rowles v Mason. Is Yet, as recently as 1842 the House of Lords found it necessary to tell the courts in Scotland that they could not hold an Act of Parliament to be inoperative merely because the forms prescribed by the two Houses of Parliament to be observed in the passing of a Bill had not been exactly followed. In giving his judgment in the case Lord Campbell said: I cannot but express my surprise that such a notion should ever have prevailed. There is no foundation whatever for it. All that a court of justice can do is to look to the Parliament roll: if from that it should appear that a Bill has passed both houses and received the royal assent, no court of justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its progress in its various stages through both houses. I trust, therefore, that no such inquiry will again be entered upon in any court in Scotland, but that full effect will be given to every Act of Parliament, private as well as public, upon what appears to be the proper construction of its existing provisions.l6

However, whilst the idea of a natural law principle of judicial appeal against statutes found no fertile ground in Britain it had an immense influence in the United States, leading to the review role of the Supreme Court which can and does overturn acts of Congress. Today in England statutes are supreme and can overrule the decisions of the courts. None the less, judges generally continue to consider that the common law is wider and more fundamental than statutes which they believe should be construed within its context. The Human Rights Act 1998 has incorporated the European Convention on Human Rights into English law and has made statutory many of our common law provisions although its effect is threatening others. Henceforth, in general, decisions by Parliament, local authorities and other public bodies must not infringe the rights guaranteed under the Act which include the right to a fair trial, freedom of expression, peaceful assembly and freedom of association. However, even the Human Rights Act is subject to interpretation and a plethora of cases has already arrived in the courts determined by judges who are developing and adapting rights and thus making new law. The Act is, in effect, a Bill of Rights which may well create strains between the courts and Parliament, particularly since some precedents are deeply rooted and have a strong stake in the common law. At the same time cases being determined by the European Court at Strasbourg are rapidly being built into an edifice of European case law to which our courts must also pay heed.

14

15 16

Coke. 8 Reports. 375. [1612] 2 Brownlow. 198. Edinburgh and Dalkeith Railway v. Wauchope. 8 Cl. & F. 710.

Origin and Growth of the Common Law 19

Prior to all this, however, the book will show how in nine cases in the twentieth century judges, interpreting the common law and statutes, had already used their judicial powers to remould and bring into line with changes in the culture of society some of the fundamental principles of the law of England.

PARTII

Criminal Trials CHAPTER 2

George Joseph Smith and the "Brides in the Bath" The problem of what has come to be called "similar fact evidence" has been a thorn in the judicial side for more than a hundred years. It has long been a principle of criminal law that the prosecution may not introduce evidence showing that the accused has been convicted of previous criminal acts or that his or her behaviour and lifestyle are such that he or she was disposed to crime: evidence showing propensity or disposition1 is inadmissible. But what if a course of behaviour is so similar to the behaviour to be adduced in evidence for the offence covered by the indictment that it lends credibility to that evidence: is this, too, to be inadmissible? The problem was known in the nineteenth century but was dealt with in terms of relevance and, since there was no established appeals system, on a case-by-case basis. For example, in the once leading case of the notorious serial poisoner, William Palmer of Rugeley in Staffordshire, who was tried in 1856, similar fact evidence was deemed inadmissible. The first case that turned on similar fact evidence after the establishment of the Court of Criminal Appeal in 1907 was that of Smith2 and for this reason it qualifies as a landmark case of the twentieth century. But an earlier case3 that went to appeal to the Privy Council established certain principles taken into consideration in Smith and it is that case that must be briefly considered first.

MAKIN'S CASE John and Sarah Makin were convicted at the Sydney Gaol Delivery of the murder of an infant, Horace Amber Murray, but the judge deferred sentence until a special case stated had been argued before the Supreme Court of New South Wales. The Makins had alleged that they had received one child to nurse for a payment of ten shillings a week and that it was returned to its parents after a few weeks. When the baby, with whose murder the Makins were charged, was received from his mother she said she had a child to be adopted; Mrs Makin agreed to receive him and Mr Makin said they would bring it up as their own because Mrs Makin had lost a child of her own when it was two years old. The Makins wanted to adopt the child and received from its mother a premium of £3. On 9 November 1892 the remains of four infants were found by constables in the back yard of 109, George Street where the Makins had lived. One was the 1

2

3

Sometimes one and sometimes the other of these terms is used, but they are synonymous. [1916] 11 Crim App R 229 (judgment delivered 29 July 1915). [1894] Makin v Attorney-General o/New South Wales. AC 57.

George Joseph Smith 21

body of a male child the clothing and hair of which identified it as that of Horace Amber Murray. A month earlier two bodies of infants had been found at another address, Burren Street, McDonaldstown, where the Makins had resided, and at the resulting inquest Sarah Makin swore that only her own family had moved from George Street to Burren Street. She and her husband both swore that the only child they had received was the one which they had in Burren Street which was given to them after they arrived there. No charges were made against them. On November 2 and 3 five more bodies were found in Burren St and both of the Makins were arrested. On November 12 the bones of another two infants were found on premises in Levy Street, Chippendale, where the Makins had also previously lived. Thus a total of 13 bodies of infants were found buried in various premises in which the Makins had resided, and the Makins were charged with and convicted of killing one of them: Horace Amber Murray. The problem was, should the evidence have been disclosed concerning the finding of the other bodies of infants whom the Makins had not been charged with murdering. The Makin's case went to the Supreme Court of New South Wales which upheld the verdict of the jury. As some of the questions raised were of grave and general importance special leave was granted to appeal to the Privy Council. The Privy Council hearing

Mr Fullerton QC, said that the evidence admitted in the case of Murray of other crimes was not relevant to the crime charged. The bodies of children found elsewhere were not shown to be the bodies of children committed to the care of the Makins. He elaborated that the evidence of five women to the effect that they had entrusted their children to· the Makins and had never seen them again was inadmissible. He said that liThe general rule and practice of the Courts in criminal cases confined the evidence strictly to direct evidence of the commission of the particular act charged, and excluded evidence of similar acts committed, or supposed to have been committed, by the same prisoner on other occasions, not as being totally irrelevant, but as inconvenient and dangerous." (authors' italics). Counsel for the respondent contended that such evidence should be admitted. The evidence of finding bodies (in George Street) other than the subject of the indictment was of necessity admitted in that instance because they were all found at the same time and place. Then, in order to rebut the defence set up of bona fide intention to adopt and maintain the children and of accidental death, the evidence of the mothers of babies having delivered their children to the prisoners at similar places and under similar circumstances was admissible. All the children of the mothers called disappeared and were not heard of again after the prisoners left Burren St and the presumption arose that the bodies found were identical with those of the missing children unless the prisoners showed to the contrary. Evidence was therefore admissible to support the inference by the recurrence of the unusual phenomena of bodies of babies having been buried in an unexplained manner in a similar part of premises previously occupied by the prisoners.

22 Famous Cases

Judgment was delivered by Lord Chancellor Herschell. He began by stating the three points4 which the judge of first instance had reserved for the opinion of the Supreme Court. They were that: 1. admitting evidence of the finding of other bodies than that alleged to be Horace Amber Murray was wrong; 2. the evidence of the five mothers should not have been admitted; and 3. there was no evidence of the death or cause of death of Horace Amber Murray, or that he was murdered. On all three points the judgment of the Supreme Court had been in favour of the Crown. The Lord Chancellor then said that there was ample evidence to go to the jury that the infant was murdered. The question that had to be determined was the admissibility of the evidence relating to the finding of other bodies, and to the fact that other children had been entrusted to the appellants. Lord Herschell then delivered a dictum that has passed into legal history and which is always quoted when similar fact evidence is mentioned. In their Lordships' opinion the principles which must govern the decision of the case are clear, though the application of them is by no means free from difficulty. It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.

At this point Lord Herschell's position is clear: evidence going to show disposition to criminal behaviour, such as past criminal acts, is not admissible. This was a general rule. But then he went on to state an exception to this rule: On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.

Thus were the clear waters of the rule muddied. Similar fact evidence is inadmissible unless it is relevant to an issue before the jury; yet all evidence must be relevant to be admissible. In the circumstances of Makins' case their Lordships found it relevant to the issue that several other infants had been received by their mothers on like representations, and upon payment of a sum inadequate for the support of the child for more than a very limited period, and that the bodies had been found buried in a similar manner in the gardens· of several houses occupied by the Makins. In other words, if the Makins did not murder the infants it was a remarkable coincidence that their bodies were all found buried in the gardens of the houses in which the Makins had lived. It was in order to rebut this line of

4

There were originally four points but one (evidence that Horace was body D) was abandoned by Makins' counsel.

George Joseph Smith 23

defence (that the Makins knew nothing about the other children) that the background evidence was admitted. Lord Herschell's words were open to interpretation: relevance was crucial yet vague. The question of the admissibility of similar fact evidence has not been resolved to this day and possibly never will since every case is different. But the issue became a good deal clearer thanks to a robust decision by the Court of Appeal when Mr Smith thought he had found a novel way to enrich himself.

SMITH'S CASE It is a general rule of law that there must be prima facie evidence that the defendant is guilty of the offence charged, before evidence of similar facts can become admissible to show that the act was done with intent. In Makin there was ample prima facie evidence to show that the Makins murdered Horace Amber Murray - indeed, probably enough to convict them without evidence of the deaths of the other infants. But in the case of Smith there was not a scrap of evidence to show that he killed Bessie Munday yet evidence of other similar deaths, subsequent to that for which he was indicted, was admitted at his trial and the culmination of the deaths of three women in almost identical circumstances resulted in· his conviction. In fact, therefore, he was convicted on similar fact eviq.ence alone, and for this reason it is a landmark case. The facts George Joseph Smith was a commonplace crook who graduated to murder. Born on 11 January 1872 at 92 Roman Road, Bethnal Green in east London, he was sent to the reformatory at Gravesend as early as the age of nine. This was followed by a number of imprisonments for theft. He was rarely in work but managed to survive by using his apparent charm to exploit women. His first marriage, to Caroline Beatrice Thornhill, took place on 17 January 1898 and on a charge preferred by her he was sentenced, on 9 January 1901, to two years' imprisonment with hard labour for receiving stolen goods. Then, in 1908, assuming the name of Oliver George Love, he 'married' Edith Peglar although his first wife was still alive. Edith Peglar was still alive when he also married Bessie Munday. Fearful for her safety, his first and real wife, Caroline, left for Canada and was also still alive at the time of his murder trial in June 1915 where she improperly referred twice in evidence to his spell of two years in prison. After the experience with his wife Smith subsequently preyed on more vulnerable women who seemed to be unaware of how he was manipulating them and unable to escape from his cruel conduct. The will that Bessie Munday had made in favour of her husband, who was then calling himself Henry Williams but whose real name was George Joseph Smith, would benefit him to the amount of £2,579 13s 7d, a very considerable sum in those days when the average wage for the working man was barely £150 a year. On 13 July she was found dead in the bath at 80 High St, Herne Bay. At the inquest Dr Frank French said he believed she had had an epileptic fit and thought she had drowned. He had seen no sign of a struggle; he said he had no reason to suspect any other cause than drowning. Although Smith was closely

24 Famous Cases

questioned the jury were convinced by Dr French and returned a verdict of death by misadventure. Smith, who had profited so richly from her will, gave her a pauper's funeral in a common grave. It is significant that all the brides in the bath died on a Friday night or Saturday morning. As a result the inquests, which were held remarkably quickly, were over before their relatives, who Smith was slow to notify, could attend. Some time later Smith met 25-year-old Alice Burnham, his next victim, at Southsea who, after looking into her financial status, he bigamously married on 4 November 1913. The father of Alice had doubts about his prospective son-in-law; during their engagement he described him as of "very evil appearance, so much so that I could not sleep whilst he was in the house as I feared he was a bad man and that something serious would happen." Despite these views of her father Alice went ahead with the marriage to the plausible and persuasive Smith. On the evening of December 13 Alice took a bath at the apartments in Blackpool where she and Smith were staying which were owned by Mr and Mrs Joseph Crossley. Her body was found some time later with her head at the foot of the bath. The inquest verdict was that Alice had accidentally died as a result of heart failure when in the bath. It transpired that on Smith's insistence she had insured herself for £500. Some time later Smith, who by this time had adopted the name of John Lloyd, had married Margaret Elizabeth Lofty and in December 1914 was living with her at 14, Bismark Road, Highgate in north London. She insured herself for £700 and on the afternoon of December 18 Margaret had visited her solicitor and made a will in favour of her husband. That same evening "John Lloyd" told the owner of the house where they lived that he was going to buy some tomatoes for supper whilst his wife took a bath. On his return he called out to her but received no answer. On entering the bathroom he found her dead in the bath. The inquest held on New Year's Day recorded a verdict of accidental death. At the funeral Smith told the undertaker, Herbert Beckett, to get it over as quickly as he could. Each new year a new address, a new "wife" and a new will in his favour; Smith was on to what these days is sometimes called a nice little earner". Everything had so far gone his way: three deaths of women with different surnames in three different towns and three favourable inquest verdicts. But this was about to stop. Two days after the inquest Joseph Crossley, who owned the house where Alice Burnham had drowned, wrote to the Metropolitan Police enclosing a newspaper cutting about the death of Margaret Lloyd, commenting about the similarity with the death of Alice Smith a year earlier. Divisional Detective Inspector Neil stopped Smith in Uxbridge Road, London on 1 February 1915 and on February 8 Smith appeared at Bow Street court and was remanded until the fifteenth. He was initially charged with making a false entry in a marriage register, but further enquiries led to his being charged on March 23 with the murder of Bessie Munday. He was tried at the Old Bailey from June 22 to July 1 before Mr Justice Scrutton in the longest and most sensational murder case since that of William Palmer, 60 years before. It was a record in that 264 exhibits were produced and 112 witnesses were called. Apart from his first wife, there were doctors, solicitors, clerks and bank staff, but no witness of any of the deaths. Pending the 11

George Joseph Smith 25

appeal he was held in Pentonville prison. During his trial Scrutton went to some rather theatrical lengths in his summing-up to show how the crime might have been committed (for which he was criticised by the appeal court) and Smith was found guilty of murder after the jury had retired for only 20 minutes. Indeed, it has been argued that the atmosphere of the court was not, "Is this man innocent or guilty?" but "Is there sufficient evidence in law to convict this undoubtedly guilty man?,,5 On being sentenced to death he entered an appeal against conviction on a point of law. The appeal The events leading up to the case were recounted at the appeal by the Lord Chief Justice, Lord Reading, who was sitting with Mr Justice Darling and Mr Justice Lush in the Court of Criminal Appeal. Lord Reading said: The appellant, although married to someone else, went through a form of marriage with [Bessie] Munday. He appropriated all her money and deserted her. Eighteen months later they met accidentally and a letter was written to her relations, in which she acquiesced, giving his reasons for leaving her, and having reference to her money, which she was said to have lent to him. A few months later they were at Herne Bay, living in a house alone together. Mutual wills were made, but as Munday had all the money and the appellant none, this was a mere blind. He then got counsel's opinion as to the effect of Munday's settlements; on the 2nd July [1912] he learned that, with the exception of £8 a month paid her by her uncle, he could secure none of her money except by her death. On the sixth of July he selected a bath, although they had got on without one for six weeks, and the particular bath chosen was of a most inconvenient size, and was put in a most inconvenient room far from the water supply; the door of the room had no lock.

It should be borne in mind that the bath referred to was not· of the modem, plumbed-in kind, but a tin, portable bath that had to be filled by hand. It had never been suggested that Munday suffered from any illness until after the bath was delivered, but then he took Munday to Or French, and described her symptoms in such a way as to induce Or French to think she had had an epileptic fit. Evidence was given that it was very unusual for a woman of that age to have a succession of epileptic fits. On the day before her death Or French found Munday in perfect health although rather tired, this being caused by the very hot weather.

Smith, the appellant, was represented by Mr (later Sir) Edward Marshall Hall, KC. He related that Smith had been charged with the murder at Heme Bay of Bessie Munday (Williams) who had been found dead in her bath and that at his trial evidence had been given of the deaths of Alice Burnham and Margaret Elizabeth Lofty on dates subsequent to the death of Bessie Munday. Evidence was further given that the appellant had gone through a form of marriage with each of those women and that they had all died in similar circumstances, in their baths. Marshall Hall said that the evidence was inadmissible because no prima facie case had been made out against the appellant. He claimed that the principle laid down in Makin was that some physical act must first be proved against the prisoner before evidence can be given of other matters in order to prove the 5

Edward Marjoribanks. Fam,ous Trials of Marshall Hall. 1950.274.

26 Famous Cases

nature of the prisoner's act. He quoted Lord Reading himself who only a year before had said: We think that the ground upon which such [similar fact] evidence is admissible is that it is relevant to the question of the real intent of the accused in doing the acts. 6

The perfectly clear inference was that there had to be an act before evidence of similar facts could be considered for admissibility. Mar-shall Hall then pointed out that the House of Lords in Christie7 had said that "evidence as to other occasions should not be admitted unless and until the defence of accident or mistake, or absence of intention to insult, is definitely put forward" because its prejudicial influence on the jury would far outweigh its evidential value. The lord chief justice interrupted at this point to say that the House of Lords had decided in Christie that it had become customary for judges to say that the value of such evidence was small compared with the prejudice created, but that the evidence was admissible. Marshall Hall continued: If the evidence regarding the death of Munday had been given first, and the prisoner had given evidence suggesting that her· death was accidental, the other evidence would have been admissible; the test is whether there is sufficient evidence of the crime for which the prisoner is being tried for the judge to leave to the jury.

In what was becoming more of a conversation than an address by counsel Lord Reading asked, liDo you object to this as the test? Is there, as a matter of law, prima facie evidence that the prisoner has committed the act charged against him? Sometimes, although there is evidence in law, the judge thinks it unsafe to leave the case to the jury." Marshall Hall accepted the test but said that, Even assuming that prima facie evidence was given, this was not a case in which evidence of other matters was admissible; the burden was on the prosecution to prove the intent. If there had been no cross-examination, and the prisoner did not give evidence or address the jury, the evidence could not be given.

Mr Justice Darling broke in to quote Lord Herschell in Makin who said that such evidence would not be inadmissible if it was relevant to an issue, before the jury, one example of which was to rebut a defence that would otherwise be open to the accused. But Marshall Hall was not going to give in. He said that such evidence would be admissible only if the defence was set up by crossexamination or by direct evidence. The judge admitted it as evidence of a system of murdering women, with whom the appellant had gone through a form of marriage, for the sake of their money... it should not be assumed that there was any prima facie case here; there was strong evidence of motive, and some of opportunity, but none of any physical fact. At the inquest the doctor gave evidence that in his opinion the woman had had an epileptic seizure, the prosecution chose to proceed on the first death in order of time; how can evidence of murders at much later dates be evidence of the appellant's intention then?

6 7

[1914] Boyle and Merchant 3 KB 339. [1914] A.C.545

George Joseph Smith 27

After interruptions from Lord Reading, that it frequently happened in libel cases, and from Mr Justice Lush, that the evidence was given to prove a fact, not intention, Marshall Hall, who really had only one tune to play, summed up his case in detail and without further interruption. He suggested that, ... even if evidence was admissible that the three women died in their baths while the appellant was in the house, the matter was carried out much further here, and evidence of all the surrounding circumstances in each case was given. The only effect was to prejudice him very gravely, and that evidence ought to have been excluded by the judge. The judge misdirected the jury as to the purpose with which the evidence was admitted; he said, 'I have told you how you ought to consider that case. You have to consider, have the prosecution satisfied you that Bessie Munday was killed by the prisoner? Bessie Munday dies under a series of circumstances which the defence say are quite consistent with accidental death. The prosecution say you find that series of circumstances repeated in the death of Alice Burnham, and when you get two repetitions of the same set of circumstances ... and 1shall have to call your attention at the close of my summing-up to the coincidences ... you are entitled to find that an occurrence of this sort which [financially] benefits the prisoner, with those attendant circumstances, is design and not accident ... The jury have to take into account three things, the circumstances of the dead body, and the way in which it is found, and the evidence they have as to the way it died; the opportunity of the prisoner to cause the death or not; the motive of the prisoner for causing the death. It may be that even then they are not sure whether it is accident or design. And then comes in the purpose, and the only purpose, for which you are allowed to consider the evidence as to the other deaths. If you find an accident which benefits a person and you find that the person has been sufficiently fortunate to have that accident happen to him a number of times, benefiting him each time, you draw a very strong, frequently an irresistible inference, that the occurrence of so many accidents benefiting him is such a coincidence that it cannot have happened unless it was design.'

Marshall Hall had quoted the trial judge at length because he believed it was a wrong direction to the jury. Lord Reading, however, held no such view. He said of the judge's summing-up, "l think that puts it very accurately and states exactly the reason why the evidence is admissible." Marshall Hall at that point must have realised that his points regarding similar fact evidence were getting him nowhere: Lord Reading and his colleagues could see no reason why it should not be admitted despite counsel's eloquent and forceful speech. He ended his address by attacking other aspects of prosecution evidence, namely that a conversation between Smith and his solicitor concerning the wills was confidential and should not have been given in evidence, and that a witness had, although inadvertently, revealed that Smith had served two years in prison. He also gave instances where in his opinion the judge had misdirected the jury. For the Crown, counsel submitted that ... where there is evidence, circumstantial or otherwise, that the prisoner did the act, but no evidence that the act was designed, and consequently no case to go to the jury,

28 Famous Cases

then evidence of the other cases may be given to show design, or may be taken into account to satisfy the jury that the prisoner did the act with which he is charged.

Lord Reading asked him what evidence there was that constituted a prima facie case. Counsel for the Crown replied by relating the circumstances of Smith's "marriage" to Bessie Munday and how when they were living at Heme Bay they made mutual wills, which were a sham as Munday had all the money and Smith none. He then described how a bath was selected, installed in an inconvenient room with no lock, and that shortly after the installation of the bath Smith took Munday to Dr French and ... described her symptoms in such a way as to induce Dr French to think she had had an epileptic fit. Evidence was given that it was very unusual for a woman of that age to have a succession of epileptic fits. On the day before her death Dr French found Munday in perfect health though rather tired, this being caused by the very hot weather.

He also described the position in the bath in which she had been found which according to the medical evidence was inconsistent with an epileptic fit. Smith had passed as Williams at Heme Bay but the money was transferred to him in his true name, and on arrest he denied having had anything to do with Heme Bay. Counsel concluded, There was clearly prima facie evidence that he caused Munday's death by drowning; . he had a motive for causing her death, and the evidence excludes any reasonable possibility of the death having been accidental. No one else had the motive and the opportunity for causing her death, and it was the appellant who laid the foundation for the doctor's suggestion of epilepsy.

Marshall Hall made no reply. At this point in the appeal, with both counsel having had their say, the issue was clear: what degree, if any, of evidence there had to be to show that the accused committed the act with which he was charged before similar evidence of other acts could be admissible. The Lord Chief Justice then gave his ruling. After complimenting Marshall Hall he said: The appellant was charged with the murder of Bessie Munday; evidence was submitted to show that he murdered two other women at a later date. The first question raised is that the judge was wrong in admitting evidence of the deaths of Alice Burnham and Margaret Lofty. Whether the evidence was admissible or not depends on principles of law which have been considered by this court many times, and which depend in the main on the statement of the law by Lord Herschell in I

Makin.

He then quoted the words of the former Lord Chancellor which are given above. Turning to the first point of law, that there was no prima facie case against the appellant, he continued: Now in this case the prosecution tendered the evidence, and it was admitted by the judge on the ground that it tended to show that the act charged had been committed, that is, had been designed ... it is sufficient to say that it is not disputed, and could not

George Joseph Smith 29 be disputed, that if as a matter of law there was prima facie evidence that the appellant committed the act charged, evidence of similar acts became admissible, and the other point does not arise for the reason that we have come to the conclusion that there was undoubtedly, as a matter of law, prima facie evidence that the appellant committed the act charged apart altogether from the other cases.

But was this not going too far? There was not a scrap of evidence of any physical act by Smith that caused Munday's death. The Lord Chancellor was himself saying that there had to be a prima facie case, although he qualified that with the words "as a matter of law". It is difficult not to believe that with that qualification Lord Reading was re-shaping the law. Indeed, it is of considerable interest that after the trial, Cecil Whiteley, one of the prosecuting counsel, admitted the difficulty faced by the Crown in having no evidence of any act by the prisoner or of his presence in the bathroom when Bessie Munday met her death. He told a meeting of the Medico-Legal Society that, "It might have been very difficult for a jury to have convicted. The prosecution not proving any act at all of the prisoner, it would have been very difficult indeed to have satisfied the jury beyond reasonable doubt that he was responsible for the death; if we had gone on it would have been hopeless for the prosecution, and there can be no doubt that he would have been acquitted."s (authors' italics). In allowing "similar fact" evidence of other deaths to be put in evidence the judge tipped the scales against Smith. There can be no doubt of Smith's guilt but the question remains, was the law properly applied? Lord Reading continued: ... viewing the case put forward with regard to Bessie Munday only, we are of the opinion that there was a case which the judge was bound in strict law to put to the jury. The case was reinforced by the evidence admitted with reference to the other two cases for the purpose of showing the design of the appellant. We think that the evidence was properly admitted, and the judge was very careful to point out to the jury the use they could properly make of the evidence. He directed them more than once that they must not allow their minds to be confused and think they were deciding whether the murders of Burnham and Lofty had been committed; they were trying the appellant for the murder of Munday. We are of the opinion therefore that the first point fails ... The second point taken is that even assuming the evidence of the deaths of the other two women was admissible, the prosecution ought only to have been allowed to prove that the women were found dead in their baths. For the reasons already given in dealing with the first point, it is apparent that to cut short the evidence would have been of no assistance to the case. In our opinion it was open to the prosecution to give, and the judge was right in admitting, evidence of the facts surrounding the deaths of the two women.

Lord Reading then dealt with the other points raised by Marshall Hall and none of the decisions delivered offered any hope to the appellant. The appeal failed and was dismissed. There was a great deal of merit in Marshall Hall's submission, but it was what the trial judge had said, and what Marshall Hall had quoted, that had appealed to the Lord Chief Justice. "If you find an accident which benefits a person and you find that the person has been sufficiently 8

Majoribanks. Ope cit. 284. Marjoribanks (a barrister) himself expressed doubts as to whether evidence as to system is admissible where there is not sufficient evidence on one charge to amount to a prima facie case.

30

Famous Cases

fortunate to have that accident happen to him a number of times, benefiting him each time, you draw a very strong, frequently an irresistible inference, that the occurrence of so many accidents benefiting him is such a coincidence that it cannot have happened unless it was design." This was an intuitive reaction based neither on the law nor on probability theory. All the eloquent legal arguments of Marshall Hall, and all the careful reasoning of Lord Reading were as nothing when compared, if similar fact evidence is allowed, with the simple fact that when a man marries three women in succession and they are each found dead in their baths, an argument that it was a remarkable coincidence and nothing to do with the husband is too much to swallow. Thus was the law moulded to accommodate an "irresistible inference". Smith's last few days were spent in Maidstone prison where he made no confession but indulged in morbid self-pity. His execution was fixed for August 13 at 8 am with Albert Pierrepoint and Eills as the hangmen. At the appointed time, in a state of collapse he was slowly assisted to the scaffold to the accompaniment of the hubbub of the large crowd, including many women, who had collected outside. As his end came he had to be supported on the drop.

Aftermath Smith set the tone for the admission of similar fact evidence although most references are to Makin. But in a case after Makin and before Smith, Mr Justice Kennedy had said: ... if ... we have to recognise the existence of certain circumstances in which justice cannot be attained at the trial without a disclosure of prior offences, the utmost vigilance at least should be maintained in restricting the number of such cases, and in seeing that the general rule of the criminal law of England, which ... excludes evidence of prior offences, is not broken or frittered away by the creation of novel and anomalous exceptions.9 (authors' italics)

Novel and anomalous exceptions were to come, starting with Smith, but in the poisoning case of Noor Mohammed v RIO Kennedy's words were quoted with approval and a conviction based on the admission of similar fact evidence was quashed on the ground that there was no direct evidence that the appellant had administered the poison in the case with which he was charged. Arguments still take place as to how similar the facts need be to be admissible ("strikingly similar" is the phrase most often used) and the example has been advancedll that identification of a burglar could not be linked to a series of burglaries simply because each time he had gained admission through a ground floor window but if he left the same limerick on the wall or a symbol on a mirror written in lipstick such evidence might well be considered to be "strikingly similar". Since Smith there have been numerous cases, but two will serve to illustrate the use and admissibility of such evidence.

Stra££en In 1952 John Thomas Straffen was 22 years old, had a mental age of nine and had twice been certified as mentally defective. In April of that year Straffen was an 9

10 11

[1906] R v Bond 2 KB 398 [1949] 1 All ER 365 by Lord Hailsham in DPP v Boardman [1975] AC 421

George Joseph Smith 31

inmate and gardener at the Broadmoor Institution. On 29 April Straffen escaped briefly from Broadmoor at 2.40 pm, was seen at 4.30 pm and captured and locked up at 6.40 pm; an escapade of four hours. The next morning at 5.40 am the body of five year-old Linda Bowyer was found strangled. Straffen was charged with her murder and he was tried in July.12 The prosecution claimed that although noone had seen the murder and Straffen had been at large for only four hours he had had ample time to commit the murder. However, there was not a scrap of evidence to link Straffen with Linda Bowyer. As the trial progressed it was revealed that he had escaped on two previous occasions and whilst he was out on licence and living with his parents two girls aged six and nine were murdered by strangulation five days apart. Straffen was seen by the police and was charged with the second murder but the judge had ruled that he was unfit to plead and he was detained at Her Majesty's pleasure, which is how he came to be living in Broadmoor. With the Linda Bower murder Straffen pleaded that he had already been recaptured by the time of the murder, and that if he did kill the little girl he was insane. He [Straffen] was convicted and sentenced to death. His appeal was dismissed and appeal to the House of Lords refused. There was a public outcry and he was eventually reprieved, but what is noteworthy is that it was only evidence of similar acts that convicted him. Other than that there was not even remotely a prima facie case against him. When delivering the judgment of the Court of Criminal Appeal, Mr Justice Slade said, It is an abnormal propensity to murder young girls and to do so without any apparent motive, without any attempt at sexual interference, where they can be seen and where, presumably, their deaths would be detected.

So, disposition relating to a pattern is sufficiently unusual. Pragmatic approach The case of DPP v Boardman 13 established a more pragmatic approach to similar fact evidence by striking a balance between probative value and prejudicial damage to the accused as the determinant of admissibility. Boardman, who was a headmaster of a small language school, was charged with three counts: 1. In 1972 committing buggery with S, a 16 year old boy; 2, in 1973, inciting H to commit buggery with him; 3. Related to a third boy but was quashed on appeal. The Court of Appeal certified a point of law, "where ... there is evidence that the accused person is a man whose homosexual proclivities take a particular form, that evidence is thereby admissible although it tends to show that the accused has been guilty of criminal acts other than those charged". The principle to be established was laid down by Lord Morris of Borth-yGest who said: ... there may be cases where a judge, having both limbs of Lord Herschell Le's famous proposition ... in mind, considers that the interests of justice ... make it proper that he should permit a jury when considering the evidence on a charge concerning one set of facts also to consider the evidence concerning another set of facts if

12 13

[1952] Rv Straffen 2 All ER 657 [1975] AC 421

32 Famous Cases

between the two there is such a close or striking similarity ... that probative force could fairly be yielded ...

Lord Hailsham of St Marylebone was more robust. He said that "the 'striking resemblance' or 'unusual features,' ... to ignore which would affront common sense, may either be in the objective facts, as for instance in R v Smith or R v Straffen, or may constitute a striking similarity in the accounts of witnesses of disputed transactions." The unusual feature in this case was that Boardman, albeit in only two instances, did not bugger the boys but suggested that they bugger him. Lord Cross of Chelsea was more circumspect. He did not find that that suggestion was so unusual, but questioned whether two boys would have lied in such a manner as to put such a suggestion into Boardman's mouth. It would be more likely that their stories were untrue if they had accused him of buggering them than that he wished to induce them to bugger him. The appeal was dismissed; similar fact evidence was henceforth to depend more on relevancy and weight than on esoteric legal principle. A new precedent A new dimension subsequently emerged in September 2000 when a serial rapist was imprisoned for life at the Old Bailey after an unprecedented decision that women he had previously been cleared of raping could give evidence against him. Nicholas Edwards, aged 39, was found guilty of rape against Miss D., aged 25, in August 1998. Mr Justice Gerber allowed the jury to hear evidence from four women who went to court claiming Edwards had raped them only to see him acquitted, and from a woman whom he was jailed for raping. For 50 years, following a Privy Council decision, it has been accepted in law that a jury verdict was binding and conclusive in all subsequent criminal proceedings. Hence, once a defendant was acquitted, no evidence to show that he or she had actually committed the offence could be put forward at a later trial. Otherwise the "double jeopardy" rule, by which no one can be tried twice for the same crime, would be breached. Before Edwards' trial, the House of Lords had been asked in June 2000 to rule on whether the women could give evidence against him. The Lords' decision that they could overruled the existing law and set a new precedent on the ground that their testimony established a pattern of behaviour that was strikingly similar to the evidence in the present case and the importance of which outweighed any prejudice against him. As for the "double jeopardy" rule, the five judges held that allowing the women to give their evidence would not breach the rule because Edwards was not at risk of conviction on the earlier rape charges, but only on the charge for which he was standing trial. Their evidence was relevant and came within the ambit of the"similar fact" rule. 14

14

The Times. 22 September 2000. The Guardian. 25 September 2000.

George Joseph Smith 33

The decision has aroused controversy in the legal world with some lawyers arguing that in the previous cases guilt had not been established beyond reasonable doubt and others claiming that it is "common sense" to include such evidence. What cannot be disputed is that the admissibility of similar fact evidence has certainly taken root in the common law.

CHAPTER 3

W oolmington's Case In 1934, in a rural area of the west country of England, a young man shot and

killed his wife. Apart from their youthfulness - the man was 20, his wife 17 there was nothing remarkable about the event and it attracted no more attention than other homicides. When the jury at the first trial disagreed upon their verdict The Times 1 had an eight line report; the second trial at which the young man, Reginald Woolmington, was convicted of murder, was considered not worthy of mention. Yet the repercussions of this case were momentous, for resulting from two trials and two appeals it was established once and for all where the burden of proof lay when one is tried for murder, and nailed down in memorable words as to where the burden lay in all criminal trials under Englishlaw. Presumption of guilt In his highly regarded and often quoted book Crown Cases, published in 1762, Mr

Justice Foster stated that in every charge of murder, once the killing by the defendant was first proved, if his defence was to succeed the prisoner had to prove circumstances of accident, necessity, or infirmity; in other words, the law judged the killing to be founded in malice until the contrary was shown. Thus, once a homicide was proved there was a presumption of guilt of murder; the burden. of proof that it was not rested with the accused. This was accepted to be the law until a revolutionary change occurred on 5 April 1935. Only a little over two months earlier Mr Justice Swift, in R v Woolmington at Bristol Assizes, had quoted Foster with approval and directed the jury that, once it was shown that death was caused by the act of the prisoner, the law presumed malice until the contrary was proved. However, this applied only to cases of murder. Two years earlier, in R v Lawrence,2 before the Judicial Committee of the Privy Council, Lord Atkin had confirmed that in trials for other crimes, "it is an essential principle of our criminal law that a criminal charge has to be established by the prosecution beyond reasonable doubt.,,3 Thus in all trials other than for murder the onus was on the prosecution to prove its case, but in trials for murder the responsibility moved to the defence to prove innocence. The direction to the jury by Mr Justice Swift could not be faulted. The facts Reginald Woolmington, a farm hand of good character, married Violet Smith, whom he had been courting since 1932 when she was only 15. She became pregnant in January 1934, they married in August and in October the baby was born. They

1 2

3

25 January 1935 p4. [1933] A.C. 707. According to Professor John H. Langbein the beyond reasonable doubt standard was not clearly fonnulated until the nineteenth century. Cf. 'The Criminal Trial before the Lawyers'. 45 University of Chicago Law Review. (1978). But something like it does seem to run through the history of the common law. Cf. the fifteenth century jurist Sir John Fortescue: "I would rather wish 20 evildoers to escape death through pity than one man to be unjustly condemned." De Laudibus. C. 27.

Woolmington's Case 35

quarrelled shortly after the birth and when the baby was a month old Violet went to live with her mother. Reginald wanted her to come back, but she refused. Early in the morning of December 10, whilst milking at the farm where he was employed, he hit on the idea of taking an old gun from the barn, going to his mother-in-Iaw's house, and telling Violet that he would shoot himself if she did not return to him. In his evidence Woolmington said that after the milking was finished he went back to his father's house for breakfast, returned to the farm and got the gun and sawed off the barrel with a fretsaw he had taken with him. He loaded the gun with two cartridges. He threw the barrel and the fretsaw into a nearby stream and returned to his father's house to change his clothes and to make a simple wire strap so that he could suspend the gun from his shoulder under his coat. He then got on his bike and cycled to the house where his wife was living. In the kitchen he asked her if she was coming back and she made no answer. They went into the parlour and he asked her again to go back to him but she said she intended to go into service. He then told her that if she would not go back to him he would shoot himself. By way of explanation he took out the gun to show it to her, the gun went off and his wife fell down. Woolmington left the house. He went home where he saw his mother and told her he had shot his wife. He then went to his employer and told him he would not be working for him any more as he had shot his wife. He was arrested and in his coat a note was found that began "Goodbye to all" and continued that he was hoping that she [Violet] would return but this was the only way out. Her mother was no good but he had only two cartridges one for her and one for me". He wrote that he was of sound mind and asked forgiveness for the trouble he had caused. He ended, "l love Violet with all my heart. Reg." He said he wrote the note after his wife's death then went downstairs and waited for the police. His father dissuaded him from shooting himself. When he was charged he said, "l want to say nothing, except I done it, and they can do what they like. It was jealousy I suppose. Her mother enticed her away from me. I done all I can to get her back. That's all." 11

The first trial Woolmington's first trial lasted but a single day and attracted little national attention. After all, why should anyone outside the farming community where he worked as a farm labourer be interested in the killing of a young girl by her husband. However, the trial was of local interest and was fully reported in the Western Gazette. 4 He first appeared at Taunton Assizes before Mr Justice Finlay. It was said by the Gazette that the accused, who was of athletic build and smartly dressed, remained composed throughout the day's hearing. The prosecution stated that the victim's aunt, Mrs Daisy Brine, was in the yard of her house next door to the one occupied by Violet Woolmington and her mother. Giving evidence, Mrs Brine said she heard scraps of conversation including, Are you coming back or not? ... Where is your mother?" She then heard a door slam followed by the report of a gun. She then saw the accused riding off on a bicycle. She went next door and found her niece lying on the floor, obviously shot and probably dead. After he had admitted shooting his wife to his father and his brother 11

4

Western Gazette. (N. Dorset Edn.) 25 January 1935, p.11.

36 Famous Cases Bill, and the police were called, Woolmington was told he would be charged with murder. The gun was found in the stream where he had thrown it. The next witness was the dead girl's mother, Mrs Smith. She said that the pair were happy until the arrival of the baby, but there was trouble when her daughter wanted to go out. She had told her mother that Woolmington would not let her out as she was after men. Her daughter also told her that he often smacked her across the face for small things. Cross-examined by the defendant's counsel, Mr Cassell, Mrs Smith admitted that she thought Woolmington had brought disgrace on the family by getting her daughter pregnant and then going to work in Jersey, but admitted that he got very good wages there. She had never seen Reg~ald strike her daughter. Albert Cheeseman, Woolmington's employer, said that he was an excellent workman. He had examined the gun (which was his) and found that the left pull, which contained the spent cartridge, was lighter than the right. He said that he had never seen Woolmington in a temper. He was a quiet man and a good worker. Finally, for the Crown Dr Carter, the pathologist who performed the postmortem examination, said that the wound was in the heart region and the shot had been fired from about one yard away. (Detective Sergeant Waymouth testified that he had charged the accused at Wincanton police station and that he was very cool.) Woolmington gave evidence in his own defence. He said he earned 33 shillings a week and paid his parents one shilling a week for his room. The rest of the money he gave to his wife and she gave him two shillings a week pocket money. He agreed with the prosecution version of events and, at Mr Cassell's request, demonstrated how he took out and held the gun. The following exchange took place:

Judge Woolmington Judge Woolmington Cassell Woolmington Cassell Woolmington Cassell Woolmington

"Why did you have to hold it up?" "I wanted to show her that as a last resource I would shoot myself." "And you pointed it at your wife?" "I don't know. I was not looking at where it was pointing." "Did you mean it to go off then?" "No, sir. It was a shock to me when it went off." "What happened to your wife?" "She fell down." "You realised she was shot?" "Yes, but I didn't know she was dead. I rushed blindly out of the house."

After the closing speech by defence counsel to the effect that the shooting was accidental and that Woolmington loved his wife and desired only that she return to him, Mr Justice Finlay summed up for 45 minutes. He told the jury that the whole question in the case was, what had really happened? They had to infer the answer from the whole of the surrounding circumstances. The jury retired for an hour and at 8 pm the foreman told the judge that they could not agree and there was no prospect of agreement even if they sat· until morning. The judge ordered a retrial at another Assize in the circuit.

Woolmington's Case 37

The second trial In the middle of February 1935 the second trial took place at Bristol Assizes before

Mr Justice Swift. Both prosecution and defence cases were similar to those at Taunton a month earlier. Additionally, a lay preacher gave evidence saying that Woolmington had visited him and told him that his wife had left him. She prevented him from boxing and he objected to his wife going out in the afternoons. He was willing to give up boxing and do better by her if she would come back to him. The preacher, Albert Berryman, said he wrote a letter to her "in a Christian spirit" advising her to return to her husband. For the defence, counsel asked Woolmington if he had told his employer, Mr Cheeseman, it was an accident and he replied, "No. I was crying at the time. I could hardly speak." In reply to a question in cross-examination he said he had no intention of hurting his wife. 5 It was the summing-up to the jury at the second trial that was crucial to the entire case. Mr Justice Swift said: "The Crown has got to satisfy you that this woman ... died at the prisoner's hands ... If they satisfy you of that, then he has to show that there are circumstances to be found in the evidence which has been given from the witness box in this case, which alleviate the crime so that it is only manslaughter, or which excuse the homicide altogether by showing that it was a pure accident." These words clearly and accurately described the law as it then was. As a consequence the jury, after retiring for 69 minutes, found Woolmington guilty and he was sentenced to death. The condemned man's mother, Maria Woolmington, immediately set about collecting signatures to a petition for his reprieve, and his father toured the villages on his motorcycle. By the end of February they had 2,000 signatures. 6 The first appeal Woolmington's appeal to the Court of Criminal Appeal was heard by Lords Justices Avory, Laurence and Greaves. Counsel for the appellant submitted that Mr Justice Swift had misdirected the jury on the question of the onus of proof. The burden was on the Crown but the judge had said that once the killing was proved the burden was on the defence to show that the killing was accidental. If the prisoner gave an explanation the jury need not be convinced by it. But if the jury were left in reasonable doubt the judge should direct them that their duty was to acquit. Mr Justice Avory said that there could be no question that the judge had properly laid down the law applicable to the case. The Court had therefore to decide if Woolmington's explanation of how his wife met her death was one which a reasonable jury could accept. The effect of the summing-up was to leave it up to the jury whether the gun went off by accident. Even if the warning about reasonable doubt had been given to the jury, they must inevitably have come to the conclusion that Woolmington was guilty. Accordingly, the Court of Criminal Appeal confirmed the conviction on the ground that Swift's direction to the jury was supported by authority. However, defence counsel made representation to the Attorney-General that the case be reviewed on the ground that it presented a legal point "of exceptional

5 6

Ibid. 15 February 1935, p4. Ibid. 1 March 1935. p4.

38 Famous Cases

urgency.,,7 The attorney-general agreed and sent the case for further appeal to the House of Lords. One can only speculate whether a more run-of-the-mill AttomeyGeneral than Sir Thomas Inskip would have made the same decision.. But Inskip was outstanding. In a mere eleven years as a Conservative MP he had held the posts of Solicitor-General and Attorney-General; he was knighted in 1922 and ennobled in 1939 as Viscount Caldecote when he became Lord Chancellor. He was subsequently appointed Lord Chief Justice. It is possible that had there been a less perceptive Attorney-General Woolmington would have hanged and his case would have been forgotten. The local paper splashed this unexpected news, calling it "A remarkable development in the Somerset girl-wife murder case." It went on to say, "Last week the Court of Appeal refused Woolmington leave to appeal. The Attorney-General, Sir Thomas Inskip, has now granted his fiat authorising an appeal to the House of Lords."s It was only the second time since the Court of Criminal Appeal had been set up in 1907 that an appeal had gone to the House of Lords on a murder conviction. The Gazette explained that Mr Cassell had approached the AttorneyGeneral on a point of exceptional urgency but he had not been at liberty to disclose what it was. Meanwhile, another petition had been organised in the West of England by Mr Edward Purcey, a Bristol gun expert. He was convinced that the gun was capable of being fired without the trigger being touched and had written to the home secretary to that effect. A third petition was also being organized by a Mrs Van Der Elst, a London woman campaigning against the death penalty. Woolmington v. DPP 9 The Lord Chancellor· himself, Viscount Sankey, presided over the appeal to the Lords sitting with Chief Justice Lord Hewart, Lord Atkin, Lord Tomlin and Lord Wright. Woolmington was brought to London from Bristol gaol wearing a dark suit and was given a seat in the gallery between two warders. to Counsel for the appellant said that the only complaint they had in regard to the summing-up was that nowhere did the judge indicate that the jury should acquit altogether or convict only of manslaughter if they had any reasonable doubt about the truth of his explanation of how Mrs Woolmington met her death. He quoted the trial judge, Mr Justice Swift, who had told the jury: In any charge of murder, the fact of the killing first being proved, all the circumstances of accident, necessity or infirmity are to be satisfactorily proved by the prisoner ... That has been the law of this country ever since we had law ... He [the prisoner] tells you it was a pure accident ... if you take that view ... you will acquit him of everything ... The law presumes it to be murder unless the prisoner can alleviate or excuse what was done. In this particular case no attempt is made to justify it.

Defence counsel, Mr J. T. O'Connor KC, submitted that Mr Justice Swift misdirected the jury in telling them that the onus of proving that the shooting was 7 8 9 10

The Times. 19 March 1935 p4. Western Gazette. (N. Dorset Edn.) 29 March 1935. PlO. [1935] AC. 462. Western Gazette. (N. Dorset Edn.) 5 April 1935. P4.

Woolrnington's Case

39

accidental was on the defence. Intention had been the essence of murder since murder was known and the burden was not on the prisoner to disprove the intent which the Crown alleged but was on the Crown to establish what the intent was. It was necessary to analyse and inquire into the mind of the accused to find whether there was malice. The Crown must satisfy the court that there was malice propense. The complaint against the Court of Criminal Appeal was that they did not take a more serious view of the trial judge's omission to say that the onus of proof was with the prosecution. The rules applicable to murder had changed since the law was altered to allow a prisoner to give evidence in his defence. The Lord Chancellor intervened to quote from Halsbury's The Laws of England vol. 9 para. 731 that, uWhere it has been proved that one person's death has been caused by another there is a prima facie perception in law that the act of the person causing that death is murder ... the onus is on [the accused] to show that his act did not amount to murder." Defence counsel submitte~ that that view was wrong and when asked, UOoes there ever come a point in a criminal case in which the burden is on the prisoner?" he replied, uNever". Lord Atkin pointed out that the burden did not mean that the accused had to satisfy the jury but he was expected to give an explanation if there was one. Summarising his submissions, defence counsel said that: 1. The Crown must prove the death was the result of a voluntary act of the accused with malice. 2. When death and malice were proved there was a prima facie case of murder. 3. The accused must then show by evidence or circumstances that the act was unintended or provoked. 4. If the jury was left in reasonable doubt, even if the explanation was untrue, they had to acquit. Counsel for the respondent replied by pointing out that where only the accused and the dead victim knew what happened, and the latter was unable to say, it was reasonable that the accused or his advocate should state how the death occurred, and the court had to make an inference. He claimed that the contents of the accused's note indicated that it had been written before the killing and that showed that he went to the house with a malicious intention: uIf," he said, Uin pursuing a malicious intention a man, even by accident, kills another person, that is murder." The judge's summing~up was that the malice was to be presumed from the killing and the question was whether the judge was right in giving that direction. The hearing, which had begun on April 4, went to a second day. At the resumed hearing Mr O'Connor criticised Mr Justice Avory's judgment at the Court of Criminal Appeal. He said, UWhat Mr Justice Avory said amounted to, 'If you put a microscope to particular phrases you may say there was no proper direction, but if you consider the whole effect of the summing-up the judge [Swift] put the matter quite properly'." O'Connor said he found it impossible to reconcile Avory's words with the statement he had quoted from [Swift's] summing-up. He contended that once a judge had said the burden rested on the accused the whole of the rest of the summing-up was vitiated. Lord Atkin then asked for a demonstration of how the gun had gone off and the Lord Chancellor and all the judges watched closely as did a number of MPs

40 Famous Cases

who had gone over from the Commons to watch from the bar. The court was then cleared and, after conferring for a few minutes, the Lords decided to allow the appeal and give their reasons later. 12 Although The Times reported the result the next dayll the Daily Express carried a huge front page headline, "LAW GIVES A MAN BACK HIS LIFE, Peers Quash Death Sentence - For First Time in History" beneath which were no fewer than five pictures of Woolmington. This was followed by a signed account by Woolmington himself on how it felt to be freed a mere three days from the date fixed for his execution. Other articles described the feelings of his parents who celebrated their son's release with farmhouse cider, and a brief description of Woolmington's counsel's speech to the Lords. Although the Western Gazette, which by then had become a weekly, had to wait a week, it was the paper that caught the drama of the occasion and the significance of the result. Under a headline, "Lords Free Dorset Labourer. Case Makes Legal History" the result was dramatically related. 13 "Woolmington appeared not to know what was going on and was obviously weary," said the report. When the Lords, for the first time, quashed a murder conviction, he appeared not to realise he was a free man. Mter the demonstration with the gun requested by Lord Atkin, the Lord Chancellor called, 'Clear the bar' and within seconds the House was clear of everyone except their Lordships. After only five minutes the bar was opened again; during that five minutes Woolmington was taken to the earl marshall's room; now he was brought back. He could not see, and, because the acoustics were bad, he could not hear when it was announced that the appeal would be allowed. He stood to attention between the warders but seemed oblivious to the fateful words. The Lord Chancellor moved to the Woolsack and told the House, 'The question is that the order appealed from be reversed. As many as are of that opinion will say 'Content.' On the contrary, 'Not Content'. He then immediately announced that the 'Contents' had it. Woolmington stood as if stupified and was unaware of what that meant to him. The Lord Chancellor then said, 'The question is that the conviction be quashed. The "Contents" have it again.' As the Lords left the chamber Woolmington remained standing and a warder Whispered to him that his conviction had been quashed and he was a free man. He still did not seem to understand and a warder led him from the gallery and explained he was free and that the conviction for the murder of his wife had been set aside. Only then did Woolmington smile and his spirits revived as he waited in the earl marshall's room for the official order from the director of public prosecutions that would allow him to leave the House. After 20 minutes the order came through and he was led from the House and left in a taxi for an unknown destination. Many people waited at Sherbome railway station on the Saturday afternoon hoping to see Woolmington, although his parents had gone to Taunton where they (wrongly) thought he would arrive. In fact, he arrived at Sherborne at 3.30 pm. He and his parents spent the evening in Yeovil and on Sunday he was at home where many friends visited him. He said that he aimed to get a job as quickly as possible.

11

12

13

The Times. 6 April 1935, p4. 6 April 1935 pp 1,2. Western Gazette. (N. Dorset Edn.) 12 April 1935, p3.

Woolmington's Case 41 Some six weeks later, in a judgment from which certain phrases have echoed down the corridors of time Viscount Sankey said: The appellant, Reginald Woolmington, after a trial at the Somerset Assizes at Taunton on 23 January 1935, at which, after an absence of one hour and 25 minutes, the jury disagreed, was convicted at the Bristol Assizes on 14 February of the wilful murder of his wife, Violet, on 10 December 1934, and was sentenced to death. He appealed to the Court of Criminal Appeal, substantially upon the ground that the learned judge had misdirected the jury by telling them that in the circumstances of the case he was presumed in law to be guilty of the murder unless he could satisfy the jury that his wife's death was due to an accident. The appeal came before the Court of Criminal Appeal upon 8 March and was dismissed. The court said that "it may be that it would have been better" had the learned judge who tried the case said to the jury that if they entertained reasonable doubt whether they could accept his explanation they should either acquit him altogether or convict him of manslaughter only, but, relying upon s.4 (1) of the Criminal Appeal Act, 1907, which provides: 'That the court may, notwithstanding they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider no miscarriage of justice has actually occurred,' they dismissed the appeal. The reasoning of the Court of Criminal Appeal is odd. Having said that it would have been better if Mr Justice Swift had told the jury that if there was any reasonable doubt whether they could accept Woolmington's explanation (which fudges totally where the burden of proof lies) they should acquit, or convict him of manslaughter, they then invoked s. 4(1) of the Criminal Appeal Act 1907. So after indicating that the trial judge failed to give a direction to the jury that could have resulted in an acquittal they then evidently found that no miscarriage of justice had actually occurred. Was the evidence against Woolmington so overwhelming that even if the judge had directed the jury as the Court of Criminal Appeal indicated it would have preferred, the jury was still bound to convict? Surely the judge erred on public law grounds: that he ignored something that should have been considered and that his lack of proper direction could have resulted in a miscarriage of justice. The Court's decision does not appear to derive from their explanation for its decision and that may have been the reason for the attomey-general's unease. Viscount Sankey then continued: Thereupon the attorney-general gave his fiat certifying that the appeal of Reginald Woolmington involved a point of law of exceptional public importance, and that, in his opinion, it was desirable in the public interest that a further appeal should be brought. The matter now comes before your Lordships' House ... The prosecution proved that at about 9.15 in the morning of 10 December Mrs Daisy Brine was hanging out her washing at the back of her house at 25, Newtown, Milborne Port in Somerset)4 While she was engaged in that occupation, she heard 14

This ancient village, its church partly Saxon and early Norman, although far from the sea was a port, once another name for borough, which returned two members to Parliament. By one of those

42 Famous Cases

voices from the next door house, No. 24. She knew that in that house her niece, Reginald Woolmington's wife, was living. She heard and could recognise the voice of ReginaldWoolmington saying something to the effect: 'Are you going to come back home?' She could not hear the answer. Then the back door in No. 24 was slammed. She heard a voice in the kitchen, but could not tell what it said. Then she heard the sound of a gun. Upon that she looked out of the front window and she saw Reginald Woolmington, whose voice she had heard just before speaking in the kitchen, go out and get upon his bicycle which had been left or was standing against the wall of her house No. 25. She called out to him, but he gave no reply. He looked at her hard and then he rode away...

Viscount Sankey proceeded: Woolmington told the jury that it was an accident, that it was a pure accident - that while he was getting the gun from under his shoulder and was drawing it across his breast it accidentally went off and he was doing nothing unlawful, nothing wrong, and this was a pure accident. There was considerable controversy whether a letter in which he set out his grievances was written before or after the above events. But when he was arrested at 7.30 on the evening of the tenth and charged with having committed murder he said: 'I want to say nothing except I done, I done it. They can do what they like with me; it was jealousy I suppose. Her mother enticed her away from me. I done all I can to get her back. That's all.' The learned judge in summing-up the case to the jury had said: 'If you accept his evidence, you will have little doubt that she died in consequence of a gunshot wound which was inflicted by a gun which he had taken to this house, and which was in his hands, or in his possession, at the time that it exploded. If you come to the conclusion that she died in consequence of injuries from the gun which he was carrying, you are put by the law of this country into this position: The killing of a human being is homicide, however he may be killed, and all homicide is presumed to be malicious and murder, unless the contrary appears from circumstances of alleviation, excuse, or justification. In every charge of murder, the fact of the killing being first proved, all 'the circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him, for the law will presume that the attack would be founded in malice unless the contrary be shown. That has been the law of this country for all time since we had law. Once it is shown to a jury that somebody has died through the act of another, that is presumed to be murder, unless the person who has been guilty of the act which causes death can satisfy a jury that what happened was something less, something which might be alleviated, something which might be reduced to a charge of manslaughter, or was something which was accidental, or was something which could be justified.' At the end of his summing-up he added:

curious coincidences that sometimes occur, in this small village a murder was committed at the adjacent house, No. 23 Newtown, during the Second World War when a Bert Budd, jealous that his wife had been talking to a soldier in a nearby village, stabbed her with his Home Guard bayonet and later shot himself.

Woolrnington's Case 43 'The Crown has got to satisfy you that this woman, Violet Woolmington, died at the prisoner's hands. They must satisfy you of that beyond any reasonable doubt. If they satisfy you of that, then he has to show that there are circumstances to be found in the evidence which has been given from the witness-box in this case which alleviate the crime so that it is only manslaughter, or which excuse the homicide altogether by showing that it was a pure accident.' In the argument before the Court of Criminal Appeal cases were cited by the learned counsel on either side and textbooks of authority were referred to, but the learned judges contented themselves with saying 'there can be no question to start with that the learned judge laid down the law applicable to a case of murder in the way in which it is to be found in the old authorities'. They repeated the learned judge's words and said: 'No doubt there is ample authority for that statement of the law.' They then relied, as I have already mentioned, upon the proviso to section 4 of the Criminal Appeal Act, 1907, and dismissed the appeal.

At this point that would appear to be that. The judges of the Court of Criminal Appeal were in no doubt that the trial judge had set out the law according to the authorities and accordingly they saw no reason to interfere with the verdict of the jury. That they had so acted was accepted by Viscount Sankey in his next sentence in which he said, ... it is true as stated by the Court of Criminal Appeal, that there is apparent authority for the law as laid down by the learned judge. But your Lordships' House has had the advantage of a prolonged and exhaustive inquiry dealing with the matter in debate from the earliest times, an advantage which was not shared by either of the courts below.

In view of his earlier quotation from Halbury's The Laws of England it seems likely that Sankey and the other law lords engaged in their historical legal research after giving their judgment six weeks earlier. It is unlikely that they could have done so in the eleven days between the Attomey-General's fiat and the commencement of the appeal. If this was indeed the case then their decision given in early April must have been reached during the five minute recess which followed the demonstration with the gun requested by Lord Atkin from something of a gut feeling that the evidential burden in cases of murder, where the consequences are most serious, was disadvantageous to the accused compared with the burden with other offences; and the pronouncement delivered in late May based on six weeks' research actually represented an ex post facto justification of that judgment. The Lord Chancellor continued: Indeed your Lordships were referred to legal propositions dating back as far as the reign of King Canute (994-1035). I do not think it necessary for the purpose of this opinion to go as far back as that. Rather would I invite your Lordships to begin by considering the proposition of law which is contained in Foster's Crown Law, written in 1762, and which appears to be the foundation for the law as laid down by the learned judge in this case. It must be remembered that Sir Michael Foster, although a distinguished judge, is for this purpose to be regarded as a textbook writer, for he did

44 Famous Cases

not lay down the doctrine in any case before him, but in an article which is described as 'The Introduction to the Discourse of Homicide.'

In some ways this is the defining moment of the law lords' judgment. Faced with an authority that had been accepted for more than 170 years, namely Foster's book, Sankey tried to find on what authority Foster had stated his proposition of law. No earlier authority could be found for it and this provided the crack into which Sankey could put a wedge: Foster was writing not in his capacity of a distinguished judge but as a jurist. Sankey continued: In the folio edition, published at Oxford at the Clarendon Press in 1762, at page 255, he [Foster] states: 'In every charge of murder, the fact of killing being first proved, all the circumstances of accident, necessity or infirmity, are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him; for the law presumeth the fact to have been founded in malice until the contrary appeareth. And very right it is, that the law should so presume. The defendant in this instance standeth upon just the same foot that every other defendant doth; the matters tending to justify, excuse, or alleviate must appear in evidence before he can avail himself of them.' Now the first part of this passage appears in nearly every textbook or abridgment which has been since written. (Here Viscount Sankey lists them). The question arises: Is that statement correct law? Is it correct to say, and does Sir Michael Foster mean to lay down, that there may arise in the course of a criminal trial a situation at which it is incumbent upon the accused to prove his innocence? To begin with, if that is what Sir Michael Foster meant, there is no previous authority for his proposition, and I am confirmed in this opinion by the fact that in all the textbooks no earlier authority is cited for it. Before, however, one considers the earlier criminal law several facts have to be remembered. First, it was not till 1907 that the Court of Criminal Appeal was set up. It is perfectly true that from time to time there have been famous occasions on which the judges and barons were called together to give their opinion upon the law of murder. It is also true that, at a later period, certain cases were reserved by the judges for the consideration of the Court of Crown Cases Reserved, but many of the propositions with regard to criminal law are contained either in the summing-up of the judges or in textbooks of authority as distinguished from a court sitting in banc (Le. to determine questions of law). The learned author of Stephen's Digest of the Criminal Law, 7th ed. (1926), has an interesting note on the definition of murder and manslaughter at page 461. But his remarks are rather directed to the ingredients of the crime than to the proof of it. None the less, the author does not hesitate to tread the path of very robust criticism of the previous authorities. He speaks of the 'intricacy, confusion, and uncertainty of this branch of the law.' He refers to the definition of Coke (1552-1623) and says: 'These passages, overloaded as Coke's manner is, with a quantity of loose, rambling gossip, form the essence of his account of murder.' He describes (at page 463) Coke's chapter on manslaughter as 'bewildering' and adds that Hale (1609-1676) treats manslaughter in a manner so meagre and yet so confused that no opinion of it can be obtained except by reading through chapter 38 to 40 and trying to make sense of them, and concludes by saying, page 466, that 'Sir Michael Foster to some extent mitigates the barbarous rule laid down by Coke as to intentional personal violence.'

Woolmington's Case 45 Next, it must be remembered that prisoners were not entitled to be represented by counsel except in cases of felony, where counsel might argue the law on their behalf. Thirdly, it must nofbe forgotten that the prisoner himself was not allowed to give evidence before the Act passed in 1898. Bearing these considerations in mind, I now turn to some of the cases cited to us. I doubt whether in any of the early ones the question of the burden of proof was considered. Rather they were concerned with the ingredients of the crime of murder. One of the first difficulties was to settle the meaning of express and implied malice. It was not till 1825 that Bayley, J., in Bromage 15 v. Prosser gave his famous definition of malice as meaning a wrongful act, done intentionally without just cause or excuse. The older cases were rather concerned to give examples of what might be malice. This was so in Mackalley's case. 16 The prisoner was there accused of murdering a serjeant of London. The courts were already considering cases of express or implied malice, and the passage in Coke appears simply to mean that if a man does acts calculated to kill and actually does kill that is evidence of malice or intent - in other words, evidence of one of the ingredients of murder, but it does not seem to be at all concerned with onus of proof or to support the statement of Sir Michael Foster on that point. As appears from Foster's Crown Law, Sir Michael Foster was familiar with one of the most famous of the earlier treatises on criminal law was the History of the Pleas of the Crown of Sir Matthew Hale. That celebrated judge died on Christmas Day, 1675. It was known that he had left a treatise on the subject and upon 29 November 1680, it was ordered by the House of Commons that the executors of Sir Matthew Hale be desired to print the manuscript relating to Crown Law and a committee be appointed to take care of the printing thereof. It is not said that anything appears in Hale suggesting that the burden of proving his innocence lay on the prisoner. Looking at the edition of 1800, c. 37, vol. 1, p. 454, is again concerned with what malice is. It is headed 'Concerning murder by malice implied, presumptive or malice in Law,' and Mackalley's case is duly cited.with Hale's treatise (see his preface), and although in the course of his book he makes reference to Hale, he gives no authority for the proposition which is under discussion. It cannot be doubted that at that time in English courts of justice the law of evidence was in a very fluid condition ... It was only later that the courts began to discuss such things as presumption and onus. We were referred to R v. Legg17 where it was said that: 'At the Newgate Session in 1674, one John Legg being indicted for the murder of Mr Robert Wise, it was upon the evidence agreed that if one man kill another and no sudden quarrel appeareth, this is murder.'

Mackalley's case is quoted as an authority and the report goes on, 'and it lieth upon the party indicted to prove the sudden quarrel.' With regard to Kelynge's Reports, the critics have greatly differed. Sir John Kelynge was chief justice of the King's Bench. He died in 1671, and, whatever opinion may be held about him as a judge ... the critics have differed greatly upon the value of his reports. Lord Campbell in his life of Kelynge, Lives of the Chief Justices (1849) vol. 1 p. 511, says: "He compiled a folio volume of decisions in criminal cases which are of no value whatever." But, on the other hand, there are others who regard the book as of high authority; see The Reporters by Wallace (Boston, 1882) p. 327.

[1825] 4 B & C 247: 1 C & P 673; 6 Dow. & Ry. KB 296; 31 JOSKB 203. [1611] R v Mackalley. 9 Co. Rep. 61B; era.Jac. 279; 14 Digest (Repl.) 104. 17 [1662] Kel. 27.

15

16

46 Famous Cases

The report of Legg's case is meagre and unsatisfactory, and cannot, I think, be held to mean that unless the prisoner prove the sudden quarrel he must be convicted of murder. The word 'onus' is used indifferently throughout the books, sometimes meaning the next move or next step in the process of proving or sometimes the conclusion of the whole matter. Mawgridge's case l8 gives the history of murder trials in English courts from the earliest times. The case, however, is no authority for saying that the prisoner at any time is called upon to prove his innocence; quite the contrary. It is another of those cases which deal with malice and with what is such provocation as will make the act of killing to be manslaughter only. In Hawkins' Pleas of the Crown, eighth ed. (1824), vo!. 1 p. 88, s. 25, it is stated: 'It is also agreed that no one can excuse the killing another by setting forth in a special pleading that he did it by misadventure or se defendendo (Le. self-defence), but that he must plead "not guilty" and give the special matter in evidence.' This points to the fact that the verdict must be given, not on any special pleading by the prisoner, but upon, and as a result of, the whole of the case, and it nowhere suggests that the burden of proof either at the beginning or at the end of a case is not on the prosecution. The case of R v. Greenacre 19 was certainly heard by a very distinguished judge, Tindale, C.}. But it is to be observed that the dictum relied upon by the prosecution in this case, namely, 'That where it appears that one person's death has been occasioned by the hand of another, it behoves that other to show from evidence, or by inference from the circumstances of the case, that the offence is of a mitigated character, and does not amount to the crime of murder,' was contained in the summing-up of the learned judge to the jury. It is the passage in Sir Michael Foster and this summing-up which are usually relied on as the authority for the proposition that at some particular time of a criminal case the burden of proof lies on the prisoner to prove his innocence. The presumption of innocence in a criminal case is strong, see Taylor on Evidence, eleventh ed. (1920), vo!. 1. Paras. 113 and 114, and it is doubtful whether either of these passages mean any such thing. Rather do I think they simply refer to stages in the trial of a case. All that it means is that if it is proved that the conscious act of the prisoner killed a man and nothing else appears in the case, there is evidence upon which the jury may, not must, find him guilty of murder. It is difficult to conceive so bare and meagre a case, but that does not mean that the onus is not still on the prosecution. If at any period of a trial it was permissible for the judge to rule that the prosecution had established its case and that the onus was shifted on the prisoner to prove that he was not guilty and that unless he discharged that onus the prosecution was entitled to succeed, it would be enabling the judge in such a case to say that the jury must in law find the prisoner guilty and so make the judge decide the case and not the jury, which is not the common law. It would be an entirely different case from those exceptional instances of special verdicts where a judge asks the jury to find certain facts and directs them that on such facts·the prosecution is entitled to succeed.

18

[1706] 1 East P.C. 276; Kel. 119; 17 State Tr. 57; Halt KB 484; Fast. 274; 14 Digest (Rep!.)

19

[1837] 8 C & P 35; 14 Digest (Rep!.) 109.

SOL

Woolmington's Case 47 Indeed, a consideration of such special verdicts shows that it is not till the end of the evidence that a verdict can properly be found and that at the end of the evidence it is not for the prisoner to establish his innocence, but for the prosecution to establish his guilt. Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence.

What Sankey had pointed out at this stage was that whereas the prosecution must prove the guilt of the prisoner beyond reasonable doubt, it is sufficient for the accused to raise a doubt as to his guilt only on the balance of probability. Thus not only does the burden of proof of guilt rest on the prosecution but the threshold of proving guilt is higher than that required of the accused to raise doubt as to his guilt. He continued: This is the real result of the perplexing case of R v. Abramovitch20 which lays down the same proposition, although perhaps in somewhat involved language. Juries are always told that, if conviction there is to be, the prosecution must prove the case beyond reasonable doubt. This statement cannot mean that in order to be acquitted the prisoner must 'satisfy' the jury. This is the law as laid down in the Court of Criminal Appeal in R v. Davies,21 the head-note of which correctly states that where intent is an ingredient of a crime there is no onus on the defendant to prove that the act alleged was accidental.

Throughout the web of the English Criminal Law one golden thread is always to be seen -that is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. (Authors' italics) If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. (Authors' italics)

This was, of course, a general and very important statement by Sankey who was well aware of the exceptions in cases of insanity (to which he referred in this judgment) and cases where the onus is specifically reversed by statute. When dealing with a murder case the Crown must prove (a) death as a result of a voluntary act of the accused and (b) malice of the accused. It may prove malice either expressly or by implication. For malice may be implied where death occurs as a result of a voluntary act of the accused which is (i) intentional and (ii) unprovoked. When evidence of death and malice has been given (this is a question for the jury) the accused is entitled to show, by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. 20 21

107 L.T. 416; 76 J.P. 348; 53 Sol. Jo. 578; 14 Digest (Rep!.) 149. [1913] 1 KB 573; L.J.KB 471; 108 L.T. 576; 77 J.P. 279.

48 Famous Cases

iu:

y are either satisfied with his explanation or, upon a review of all the evidence, If the ar~ left reasonable doubt whether, even if his explanation be not accepted, the act was umntentional or provoked, the prisoner is entitled to be acquitted. It is not the law of England to say, as was said in the sUmming-up in the present case,

u:

'If the Crown satisfy you that this woman died at the prisoner's ha~ds, then he has to show that there are circumstances to be found in the evidence which has been given from the witness-box in this case which alleviate the crime so that it is only manslaughter or which excuse the homicide altogether by showing it was a pure accident.' If the proposition laid down by Sir Michael Foster or in the summing-up in R v. Greenacre means this, those authorities are wrong. We were then asked to follow the Court of Criminal Appeal and to apply the proviso to section 4 of the Criminal Appeal Act, 1907, which says: 'The Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider no substantial miscarriage of justice has actually occurred.' There is no doubt that there is ample jurisdiction to apply that proviso in a case of murder. The Act makes no distinction between a capital case and any other case, but we think it impossible to apply it in the present case. We cannot say that if the jury had been properly directed they would have inevitably come to the same conclusion. In the result we decline to apply the proviso and, as already stated, we order that the appeal should be allowed and the conviction quashed.

The other Law Lords concurred. Reginald Woolmington was freed just three days before he was due to be hanged. After recovering from his ordeal and still only 21 years old, he returned to Jersey where he had spent the previous summer harvesting potatoes, and disappeared into obscurity. His son was given up for adoption, but when his parents' history became known he was rejected and spent many years in a Dr Bamado's home. When older he was again adopted. He learned what had happened only in later life and he was already in his sixties before he returned to the village where his parents had lived before the tragedy that befell them. No presumption of murder It is an axiom of the law that the judges do not make law but merely declare what it is and always has been. Nonetheless, lilt was Woolmington that effected a revolution in the criminal law ... for all that Viscount Sankey pretended that he was only stating the existing position".22 However, it had taken a very long time for the golden thread" to become visible to the judges in murder trials and it was a close thing and would not have been perceived then if the case had rested with the Court of Criminal Appeal. It was also decided in Woolmington, as part of the ruling, that there is also no presumption of murder when a defence to a charge of murder is accident or provocation. The burden of satisfying the jury still rests on the prosecution. As we 11

22 Williams G. "The Logic of Exceptions". Cambridge Law Journal. 47. (1988).

Woolmington's Case 49

have seen Viscount Sankey said that if the jury were left in reasonable doubt

whe~er the act was unintentional or provoked, the prisoner was entitled to be acquItted. He no doubt meant"acquitted of murder"; however, this sentence should not. have concluded ~ith the word "acquitted" but with the words "the prisoner is entitled to the benefIt of the doubt." Where there is provocation a verdict of manslaughter instead of murder may be returned but not an acquittal. In Mancini v D.p.p.23, where this was confirmed, Lord Simon, with Viscount Sankey's consent, clarified the sentence by substituting"acquitted in the one case and found guilty of manslaughter only in the other." Mancini also decided that on the trial of someone charged with murder it was the duty of the judge in his summing-up to deal adequately with any view of the evidence of accident, which would result in an acquittal, or provocation which might reduce the crime to manslaughter. This was so even if the defending counsel had not raised the point. It also applied to self-defence where Mr Justice Foster had stated that even in this case the burden still rested on the accused. It further confirmed that the rule that the prosecution must prove the charge beyond reasonable doubt was of general application in all charges under the criminal law except in cases of insanity and where onus of proof was specially dealt with by statute. As we have seen, although the House of Lords' decision in Woolrnington was that the burden of proof of mens rea, i.e. guilty intent, was on the Crown Viscount Sankey confirmed that there was an exception in cases of insanity. This followed M'Naghten's Case in 184324 when the House of Lords ruled that everyone is to be presumed sane until the contrary is proved to the satisfaction of a jury. However, on appeal in one case a verdict of manslaughter has been substituted for one of murder after the trial judge left it to the jury to decide whether the accused had suffered from provocation without telling them that the burden of disproving provocation lay not with the defence but with the prosecution. 25 Other cases have confirmed that the burden of negativing a defence of duress/6 or of selfdefence,27 also rests with the prosecution. With voluntary intoxication, Mr Justice Petrie told the jury in DPP v Majewski 28 that they could "ignore the subject of drink or drugs as being in any way a defence to charges of specific intent" and an appeal to the House of Lords was unanimously 29 dismissed. It is open, however, for the accused to prove that his (or her) intoxication ,:as involuntary - a difficult task, but it is sometimes attempted to show that the drink of the accused was "laced" and that intoxication was involuntary. In terms of the origins and growth of the common law it is of interest that the problems surrounding these "defences" are similar to those outlined by Sir Edward Coke and Sir Matthew Hale in the seventeenth century.

23 24 25

26 27 28 29

[1942] A.C. 1; [1943] 28 Cr.App. R. 65. 10 Cl. & F. 9.11. McPherson [1957] 41 Cr App Rep 213. C.C.A. Gill [1963] 2 All ER 688 C.C.A. and Bone [1968] 2 All ER 644 C.A. LobeIl [1957] 1 All ER 734 C.C.A. [1976] AC. 443. [1976] 2 All ER 142.

50 Famous Cases

The "beyond reasonable doubt" principle In Woolrnington the House of Lords explained the general principle of the presumption of innocence by saying that "it is sufficient for [the accused] to raise a doubt as to his guilt." As to how the judge should direct the jury on "beyond reasonable doubt," in Mancini [1942] A.C. 11 it was said: Woolmington's Case is concerned with explaining and reinforcing the rule that the prosecution must prove the charge it makes beyond reasonable doubt, and, consequently, that if, on the material before the jury, there is a reasonable doubt, the prisoner should have the benefit of it ... There is no prescribed formula for summing up in a trial for murder, but the essential rules on this matter are as above stated ... There is no need to repeat to the jury the warning as to reasonable doubt again and again, provided that the direction is plainly given.

The "reasonable doubt" formula has been accepted in all common law countries, including the United States. Nevertheless, it was not helped in England in 1952 when Lord Chief Justice Goddard, in the Court of Criminal Appeal, recommended its replacement by a direction to the jury that it should be "satisfied" of guilt, or "satisfied so that they can feel sure.,,30 Surely, "satisfied" can mean either "satisfied beyond reasonable doubt" or "satisfied on a balance of probability" - the 1 test used in civil cases. Consequently, three years later in the case of R v Hepworth/ where the jury was instructed that they had to be satisfied of guilt, or that guilt had to be proved to their satisfaction, convictions were quashed. Goddard's objection to the "reasonable doubt" formula appears to have arisen from his belief that explanations of it by judges often created confusion in the minds of jurors. He may have been right, but that depended on the clarity of the judge's direction; there was no reason to believe that the formula was wrong. And the direction given to a jury by Lord Denning when he was still a judge at first instance seems both clear and unobjectionable. He said: The degree of cogency need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'Of course it is possible, but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice.32

Aftermath of Woolmington As well as in the case of Mancini cited above, the judgment in Woolrnington was quoted in many cases that followed. At the appeal in Morrison,33 a case of bigamy, counsel for the appellant said it was for the prosecution to establish that the appellant's first marriage was not subsisting. The judge ought to have told the jury that before they found the appellant guilty they had to be satisfied that the wife's first husband was not dead. The summing-up of the trial judge had also been

30 31 32

33

R v Summers. [1952] 1 All E.R. 1059. [1955] 2 Q.B. 600 (C.C.A.) Miller v Minister of Pensions. [1948] L.J.R. 203. [1947] 2 All E.R. 372. [1940] Cr. App. R. 27.

Woolrnington's Case 51

contrary to the opinions expressed in Woolrnington v DPP. R v Prince34 was a case of murder. Counsel for the appellant argued that the summing-up of the trial judge, though favourable to the appellant in some respects, did not satisfy the requirements of Woolrnington v DPP. The Lord Chief Justice said: ... counsel for the appellant has quite properly called our attention to the comparatively recent decision of the House of Lords in Woolrnington v DPP where Sankey Le ... called attention to the fact that it is the duty of the prosecution to prove the prisoner's guilt ... The judge did not give to the jury a direction of the character which Lord Sankey Le states as the law.

In this case a conviction of murder was reduced to manslaughter. In the case of R v Carr-Briant/s Mr Justice Hurnphreys referred to " ... the principle of our law expressed in Woolrnington v DPP, 'No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England.'" Woolrnington was cited by Mr Justice Cassels in Gauthier36 : "lf there is no evidence before a jury on which a reasonable man could find a verdict of manslaughter instead of murder it is no defect in the summing-up that manslaughter is not dealt with." Even as recently as 2000 Woolrnington was being invoked. A 15- year-old boy was convicted under section 1 of the Indecency with Children Act 1960 of inciting a child - a girl of 13 - to commit an act of gross indecency with him. This was a strict liability offence and the Divisional Court upheld the justices' ruling that mistaken belief in the complainant's age did not amount to a defence. On appeal five law lords, including the current and immediate past Lords Chancellor, ruled otherwise. They stated that not only was an.honest but mistaken belief that the girl was over the age of 14 a defence, the belief need not be a reasonable one. Accordingly, for a conviction under s.1(1) of the Indecency with Children Act 1960 it was necessary for the prosecution to prove the absence ofa genuine belief on the part of the accused, which did not have to be on reasonable grounds, that the victim was 14 or over (our italics).37 The leading authority in favour of strict liability, Prince/8 the court said, was unsound - a relic from an age dead and gone". Strict liability itself is not dead and gone but this case represents a leaning towards the presumption of innocence which Parliament has considerably eroded by statute. As Lord Cooke of Thomdon, an eminent New Zealand judge said in his Hamlyn lecture "One Golden Thread?" in 1996, "It does seem odd that in the home of Woolrnington absolute (or "strict") liability is so extensively accepted by the courts, and with some equanimity."39 Lord Goddard for one was never well disposed to Viscount Sankey's historic ruling but Sir John Smith has well said of Woolrnington, "Never, in my opinion, has the House of Lords done a more noble deed in the field of criminal law than on that day."40 11

34

3S 36

37 38

39 40

[1943] [1944] [1944] [2000] [1875] p.47.

Ibid. 61. Ibid. 85. Ibid. 117. B (a minor) v DPP. 1 WLR 452 L.R.2 CCR.154.

38 N.I.L.Q. 224.

CHAPTER 4

Gypsy Jim Smith At the beginning of March 1960, in Woolwich south-east London, Jim Smith was driving a Ford Prefect motor car which contained stolen goods. He was stopped by a police officer on point duty when police constable Leslie Meehan, who was also on duty and knew Smith, questioned him about its contents which he saw in the back of the car. He told him to draw into the kerb. Instead of doing so, Smith drove away down an adjoining road, increasing his speed and swerving from side to side with Meehan clinging to the offside driver's window. Meehan was struck by oncoming cars and finally fell into the path of a bubble car and suffered from a crushed skull and other injuries from which he died. He was 34 years old, married with four children. The next day Smith was remanded in custody at Woolwich magistrates' court. When cautioned he was alleged to have said, "I didn't mean to kill him. I didn't want him to find the gear." When charged he said, "I didn't kill him like murder. Murder's ridiculous." He then signed a statement in which, inter alia, he said, "PC Meehan jumped on the side of the car and I got frightened. I don't know what I got frightened about. I don't think I thought about the stolen gear I had on board. I don't know what I did next in respect of driving the car. All I know is that when he fell off he must have been hurt. I knew he fell off, and then I took a turning off the Plumstead Road. I drove up this turning some way and turned right down a back street. I stopped the car in this back street, as George" (his passenger) "wanted to get out of it. I got out too and chucked the gear out of the car on to the pavement. I got rid of it, because I was scared the police would find it in my motor." The case Smith was sent for trial at the Old Bailey on 4 Apri11960 charged with murder. The prosecuting counsel, Mervyn Griffiths-Jones, told the jury that Smith had had some stolen scaffolding clips in the back of his car. He was, he said, told by police constable Meehan to pull up at the kerb but instead of doing so he accelerated, zigzagging at speed along Plumstead Road with the officer being knocked against oncoming cars until he fell off. He admitted he was the driver of the car and that Meehan had been flung off but on later returning to the scene asked: "Is he dead?" On being told that he was, he said: "I knew the man, I wouldn't do it for the world. I only wanted to shake him off." In the police car he kept muttering to himself "It is a terrible thing. I know his family and I know he has kids". In his evidence Smith, who was a gypsy and could neither read nor write, said that when PC Meehan jumped on the side of the car, his foot went down on the accelerator and he was scared and frightened. He agreed that he did not take his foot off the accelerator. "I never though of it, sir," he said. "I was frightened. I was up in the traffic. I never thought of it. It happened too quick." Asked why he did not take his foot off the accelerator, he said: "I would have done, but when he jumped on the side he took my mind off what I was doing. When he jumped on I was frightened. I was up the road before it happened. It all happened in a matter of seconds."

Gyspy Jim Smith 53 The foundations of his defence on a plea of not guilty were that it was a pure accident; that he was not really conscious that the officer was still hanging on to the car; and that he could not keep a straight course because of the weight of metal in the back. In the alternative, it was argued that it was a case of manslaughter and not murder since he had neither intent to kill nor to do grievous bodily harm. Mr Justice Donovan, in his summing-up to the jury, said that there was a limit to human credulity and the jury might believe that the defendant's explanation had gone well past it. If they came to the conclusion that he did know that the constable was hanging on to the car, "I do not know how you can properly find that this was an accident." He also referred to the presumption of law that a man intends the natural and probable consequences of his acts, without directing the jury that the presumption was rebuttable. The judge accepted, and assumed the jury accepted, that Smith did not actually intend to kill the officer. However, in his final direction to the jury he added: "if you are satisfied that he must, as a reasonable man, have contemplated that grievous bodily harm was likely to result to that officer ... and that such harm did happen and the officer died in consequence, then the accused is guilty of capital murder."t After the trial had lasted for three days the jury returned a verdict of capital murder under section 5(1) of the Homicide Act, 1957 which, so far as is material, reads: the following murders shall be capital murders, that is to say ... (d) any murder of a police officer acting in the execution of his duty or of a person assisting a police officer so acting." 11

••••

Malice aforethought Smith appealed against conviction to the Court of Criminal Appeal before Mr Justice Byme, Mr Justice Sachs and Mr Justice Winn. 2 The first ground of the appeal was that the judge had misdirected the jury as to the application of the rule that a person is presumed to intend the natural and probable consequences of his acts. The true test of whether Smith intended to cause grievous bodily harm was a subjective one: did he, Smith, intend to do harm? The "reasonable man test" advocated by the judge at the Old Bailey was an objective test and wrong. The second ground was that it was equally wrong to say that if a man intended to commit grievous bodily harm, did it, and death resulted, that was murder. There had to be malice aforethought, said Smith's counsel. But malice aforethought had long involved an intention to cause grievous bodily harm (or death) to another and this would be finally settled as binding by the House of Lords in Cunningham. 3 Since the Homicide Act, 1957, the defence continued, implied malice (that is, malice that could be assumed by the court even where it was not explicit or expressed) had gone and there was no express malice in this case. The appeal was allowed and a verdict of manslaughter and a sentence of ten years imprisonment substituted for the sentence of death by hanging. The full judgment was delivered a week later by Mr Justice Byrne. During it he said: On this appeal no submission has been made that there could have been in the circumstances an acquittal on the basis of there having been a mere accident. [1960] 3 All ER. 161. [1960] R v. Smith. WLR 92. 3 [1982] AC 566.

1 2

54 Famous Cases

Accordingly, the sole question raised by the appeal is whether a verdict of manslaughter should be substituted for that of capital murder. At no stage did the prosecution submit that there had been established against the appellant an actual intent to kill PC Meehan; and the judge, immediately after dealing with the defence of mere accident, stated that as regards the rest of his summing-up he proposed to assume that the jury would not find that the appellant deliberately intended to kill the police officer. Thus the issue for the jury on the charge of murder was whether the prosecution had established that the appellant intended to cause the police officer grievous bodily harm (see R v. Vickers4). On that issue the prosecution's case was that this intention ought to be inferred from the appellant's conduct, whilst the case for the defence was that the appellant in fact had no such intent and that in any event the intent was not established as an inference from the facts. In the above circumstances it fell to the judge to direct the jury on the meaning and application to the particular facts of the maxim on which the prosecution had relied and which is often stated in the following terms: 'A man must be taken (or presumed) to intend the natural consequences of his acts.' This is a presumption to which the judge at the outset referred in the following terms: 'The intention with which a man did something can usually be determined by a jury only by inference from the surrounding circumstances including the presumption of law that a man intends the natural and probable consequences of his acts.' Neither at that stage nor later was the jury given any explanation in general terms of the meaning or effect of the word 'presumption' or that any such presumption may be rebutted. Whatever may have been the position last century when prisoners could not go into the witness-box and the distinction between presumptions of law and presumptions of fact was not so well defined, it is now clear, as was naturally conceded by counsel for the Crown, that the presumption embodied in the maxim previously stated is not an irrebuttable presumption of law. The law on this point as it stands today is that this presumption of intention means that, as a man is usually able to foresee what are the natural consequences of his acts, so it is, as a rule, reasonable to infer that he did foresee them and intend them. Although, however, that is an inference that may be drawn, and on the facts in certain circumstances must inevitably be drawn, yet if on all the facts of the particular case it is not the correct inference, then it should not be drawn ... As regards the various other authorities cited by counsel for the appellant on this point, care must, of course, be taken to consider the phrases therein used in relation to the particular facts. The strength of any presumption obviously varies according to particular facts and this may entail considerable adjustments in the practical terms of the charge to the jury. Thus there is a class of cases where the act of the accused must obviously cause grievous bodily harm, as where a blow with a sharp and heavy hatchet is deliberately aimed at and strikes the victim. In another class are cases where a reasonable man would realise that his act might cause grievous bodily harm but the degree of the probability or possibility of that type of harm resulting varies according to the facts of the case. In the first class of case where the harm must obviously result from the act and there is no evidence which could be regarded as rebutting the presumption, a direction to the jury that 'a man must be presumed to intend the natural consequences of his act' could be apposite, in the other cases it would not.

4

[1957] 2 All ER 741; [1957] 2 QB 664.

Gyspy Jim Smith 55 In the other cases the charge to the jury will, of course, vary according to the facts (including the degree of likelihood of grievous bodily harm being caused) but the essence of the matter remains that whilst the accuse may be presumed to have intended the natural consequences of his act, the question is, 'Did he actually intend them?' ... Once mere accident was excluded, the present case became one in which the degree of likelihood of serious injury to the police officer depended on which of the not always consistent versions of the facts given by witnesses for the prosecution was accepted. It was one in which it could not be said that there was a certainty that such injury would result; and it was one in which there always remained the question whether the appellant really did during the relevant ten seconds realise what was the degree of likelihood of serious injury. If the jury took the view that the appellant deliberately tried to drive the body of the police officer against oncoming cars, the obvious inference was open to them that the· appellant intended serious injury to result; if, however, they concluded that he merely swerved or zigzagged to shake off the officer, or if they concluded that for any reason he may not have realised the degree of danger to which he was exposing the officer, a different situation would arise with regard to the inferences to be drawn. In the former case the jury might well have felt they were dealing with consequences that were certain, in the latter only with degrees of likelihood. In such circumstances it was essential, once the language of presumption had been used, to make it clear that a presumption can be rebutted; to explain in broad language what view of the facts might constitute a rebuttal; to point out the distinction between consequences that must and consequences that might result; and in the end to make it plain that the overall burden of proving actual intent continued to rest on the prosecution. When one looks at the summing-up which followed the direction as to the defence of mere accident, it would appear that the learned judge framed his charge to the jury on the basis of various passages in R v Ward,S one at least of which appears to treat results which are likely as being on the same footing as results which are certain. In doing so he may well have been influenced by the request of counsel for the appellant at the trial to base his directions on that particular judgment. The result, however, was that when he came to the concluding passages of the summing-up he spoke of the jury being entitled to impute guilty intent if a reasonable man would have considered results 'likely' or such as 'might well' flow from the acts done, and spoke thus, in our opinion, without sufficient reference to the fact that those matters provided no more than a pointer towards the solution of the ultimate question: what was the actual state of mind of the appellant. Thus phrases were used in this vital portion of the summing-up which, taken as a whole, we feel might have led the jury to consider that they were entitled to infer guilty intent from what a reasonable man would think to be likely, without sufficient warning that if on the facts as a whole they were left in reasonable doubt whether the appellant did intend to do grievous bodily harm, then it was for the jury to acquit on the charge of capital murder. The final passages included the phrases 'If you are satisfied that ... he must as a reasonable man have contemplated that grievous bodily harm was likely to result ... then the accused is guilty of capital murder.' Accordingly, it does not seem to us safe to assume that the jury fully understood the position as regards the relevant presumption. We have for these reasons come to the conclusion that the verdict of capital murder should not stand and that a verdict of manslaughter should be substituted.

S

[1956] 1 All ER 566; [1956] 1 QB 355.

56 Famous Cases

DPP v. Smith 6 Two weeks after that judgment the director of public prosecutions was granted a certificate of the Attorney-General to appeal to the House of Lords. At this point the home secretary, R.A. Butler, announced that if the murder conviction was restored he would commute the mandatory death sentence. The appeal was heard before the lord chancellor, Viscount Kilmuir, the former lord chief justice, Lord Goddard, the current lord chief justice, Lord Parker of Waddington, Lord Denning and Lord Tucker, as dazzling an array of "judicial stars" as might be found. The law lords restored the conviction of capital murder and the reasons are to be found in the speech of the Lord Chancellor who said: My lords, the respondent, Jim Smith, was convicted on 7 April 1960 of the wilful murder on 2 March 1960 of Leslie Edward Vincent Meehan, a police officer acting in the execution of his duty. Such a crime constitutes capital murder under section 5 of the Homicide Act 1957, and, accordingly, the respondent was sentenced to death. There was never any suggestion that the respondent meant to kill the police officer, but it was contended by the prosecution that he intended to do the officer grievous bodily harm as a result of which the officer died ... the jury by their verdict must have rejected the possibility of accident. Indeed, the defence of accident was never suggested either in the Court of Criminal Appeal or in your Lordships' House. It is in regard to the second defence that the summing-up of the learned judge has been criticised and, indeed, has been held to amount to a misdirection by the Court of Criminal Appeal. It is said that the jury were misdirected as to the intent which has to be proved in order to constitute the necessary ingredient of malice. The passages complained of are these: 'The intention with which a man did something can usually be determined by a jury only by inference from the surrounding circumstances including the presumption of law that a man intends the natural and probable consequences of his acts. If you feel yourself bound to conclude from the evidence that the accused's purpose was to dislodge the officer, then you ask yourselves this question: Could any reasonable person fail to appreciate that the likely result would be at least serious harm to the officer? If you answer that question by saying that the reasonable person would certainly appreciate that, then you may infer that that was the accused's intention, and that would lead to a verdict of guilty on the charge of capital murder. Now the only part of that evidence of PC Weatherill which the accused challenges is the part that incriminates him, namely, "I only wanted to shake him off." He says he did not say that. Well, you may think it is a curious thing to imagine, and further it may well be the truth - he did only want to shake him off; but if the reasonable man would realise that the effect of doing that might well be to cause serious harm to this officer, then, as I say, you would be entitled to impute such an intent to the accused, and, therefore, to sum up the matter as between murder and manslaughter, if you are satisfied that when he drove his car erratically.up the street, close to the traffic on the other side, he must as a reasonable man have contemplated that grievous bodily harm was likely to result to that officer still clinging on, and that such harm did happen and the officer died in consequence, then the accused is guilty of capital murder, and you should not shrink from such a verdict because of its possible consequences.

6

[1961] AC. 290. HL.

Gyspy Jim Smith 57 On the other hand, if you are not satisfied that he intended to inflict grievous bodily harm upon the officer - in other words, if you think he could not as a reasonable man have contemplated that grievous bodily harm would result to the officer in consequence of his actions - well, then, the verdict would be guilty of manslaughter.' The main complaint is that the learned judge was there applying what is referred to as an objective test, namely, the test of what a reasonable man would contemplate as the probable result of his acts, and, therefore, would intend, whereas the question for the jury, it is said, was what the respondent himself intended. This, indeed, was the view of the Court of Criminal Appeal who said: 'Once mere accident was excluded, the present case became one in which the degree of likelihood of serious injury to the police officer depended on which of the not always consistent versions of the facts given by witnesses for the prosecution was accepted. It was one in which it could not be said that there was a certainty that such injury would result; and it was one in which there always remained the question whether the appellant really did during the relevant ten seconds realise what was the degree of likelihood of serious injury. If the jury took the view that the appellant [the present respondent] deliberately tried to drive the body of the police officer against oncoming cars, the obvious inference was open to them that the appellant intended serious injury to result; if, however, they concluded he merely swerved or zigzagged to shake off the officer, or if they concluded that for any reason he may not have realised the degree of danger to which he was exposing the officer, a different situation would arise with regard to the inferences to be drawn. In the former case the jury might well have felt they were dealing with consequences that were certain; in the latter only with degrees of likelihood.' Putting aside for a moment the distinction which the Court of Criminal Appeal were seeking to draw between results which were 'certain' and those which were 'likely', they were saying that it was for the jury to decide whether, having regard to the panic in which he said he was, the respondent in fact at the time contemplated that grievous bodily harm would result from his actions or, indeed, whether he contemplated anything at all. Unless the jury were satisfied that he in fact had such contemplation, the necessary intent to constitute malice would not, in their view, have been proved. This purely subjective approach involves this, that if an accused said that he did not in fact think of the consequences, and the jury considered that that might well be true, he would be entitled to be acquitted of murder. My lords, the proposition has only to be stated thus to realise what a departure it is from that upon which the courts have always acted. The jury must, of course, in such a case as the present make up their minds on the evidence whether the accused was unlawfully and voluntarily doing something to someone. (Authors' italics). The unlawful and voluntary act must clearly be aimed at someone in order to eliminate cases of negligence or of careless or dangerous driving. Once, however, the jury are satisfied as to that, it matters not what the accused in fact contemplated as the probable result or whether he ever contemplated at all provided he was in law responsible and accountable for his actions, that is, was a man capable of forming an intent, not insane within the M'Naghten Rules and not suffering from diminished responsibility. On the assumption that he is so accountable for his actions, the sole question is whether the unlawful and voluntary act was of such a kind that grievous bodily harm was the natural and probable result. The only test available for this is what the ordinary

58 Famous Cases

responsible man would in all the circumstances of the case, have contemplated as the natural and probable result. That, indeed, has always been the law, and I would only make a few citations... In R v. Lumley7, Avory, J. directed the jury in these terms: 'When he did the act, did he contemplate, or must he as a reasonable man have contemplated, that death was likely to result, or must he as a reasonable man have contemplated that grievous bodily harm was likely to result? If, in your opinion, he must as a reasonable man have contemplated either of those consequences, then your duty is to find him guilty of murder.' In R v. Philpot 8 the accused had strangled his wife. In evidence he said, 'Something seemed to snap in my head, and I jumped up and caught her by the throat. I lost control of myself altogether. I did not know what I was doing exactly; I felt as if I was holding a very strong galvanic battery and wanted to leave go, and could not.' The real issue was whether or not he was sane at the time. The jury found that he was sane and that he acted in a fit of temper without intending to kill her. In answer to a question from the judge the foreman said, 'The jury are unanimously and emphatically of opinion that at the moment of the act the prisoner did not realise the consequences of what he was doing.' The judge then asked them to reconsider their verdict, saying that a man is held to intend the consequences of his act, and as a result the jury found the accused guilty of murder. , The court of criminal appeal (consisting of Lord Alverstone, CJ, Hamilton and Lush JJ) in dismissing the appeal said: 'The jury found that he killed her in a fit of temper; they added that he did not realise the consequences of his act, but they cannot have meant that he began to do a harmless act, or one but little blameworthy, which afterwards developed into something causing death. They must have meant that the failure to realise the consequences was due to the fit of temper. In the circumstances it was not a misdirection to tell the jury that a man is held to intend the consequences of his act. The only act in question was that which caused death, and the appellant who committed this act, if sane, must be held to have intended that consequence...' The only case which could possibly be said to support the view taken by the Court of Criminal Appeal in the present case is R v. Vamplew9 in which a young girl of thirteen was charged with the wilful murder of an infant about ten weeks' old by administering poison. In summing-up Pollock C.B. directed the jury that: 'The crimes of murder and manslaughter were in some instances very difficult of distinction. The distinction which seemed most reasonable consisted in the consciousness that the act done was one which. would be likely to cause death. No one, however, could commit murder without that consciousness. The jury must be satisfied, before they could find the prisoner guilty, that she was conscious, and that her act was deliberate. They must be satisfied that she had arrived at that maturity of intellect which was a necessary condition of the crime charged.' It is clear, however, from the argument in the case and, indeed, from the last sentence of the direction of the chief baron that the real issue in the case was whether, by reason of her age, the accused had the necessary mens rea.

7 8 9

[1911] 22 Cox C.C. 636. [1912] 7 Cr. App. Rep. 141, CCA. [1862] 3 F. & F. 520.

Gyspy Jim Smith 59 My lords, the law being as I have endeavoured to define it, there seems to be no ground upon the approach by the trial judge in the present case can be criticised. Having excluded the suggestion of accident, he asked the jury to consider what were the exact circumstances at the time as known to the respondent, and what were the unlawful and voluntary acts which he did towards the police officer. The learned judge then prefaced the passages of which complaint is made by saying, in effect, that if in doing what he did he must as a reasonable man have contemplated that serious harm was likely to occur then he was guilty of murder. My only doubt concerns to use of the expression 'a reasonable man', since this to lawyers connotes the man on the Clapham omnibus by reference to whom a standard of care in civil cases is ascertained. In judging of intent, however, it really denotes an ordinary man capable of reasoning who is responsible and accountable for his actions, and this would be the sense in which it would be understood by a jury. AJ10ther criticism of the summing-up and one which found favour in the Court of Criminal Appeal concerned the manner in which the trial judge dealt with the presumption that a man intends the natural and probable consequences of his acts. I will cite the passage again: 'The intention with which a man did something can usually be determined by a jury only be inference from the surrounding circumstances including the presumption of law that a man intends the natural and probable consequences of his acts.' It is said that the reference to this being a presumption of law without explaining that it was rebuttable amounted to a misdirection. Whether the presumption is one of law or of fact or, as has been said, of common sense, matters not for this purpose. The real question is whether the jury should have been told that it was rebuttable. In truth, however, as I see it, this is merely another way of applying the test of the reasonable man. Provided that the presumption is applied, (Le. provided that a reasonable man would have foreseen the probability of the consequence) once the accused's knowledge of the circumstances and the nature of his acts have been ascertained, the only thing that could rebut the presumption would be proof of incapacity to form an intent, insanity or diminished responsibility. In the present case, therefore, there was no need to explain to the jury that the presumption was rebuttable.

This dictum claims that, apart from its qualifications, there is a presumption that is irrebuttable presumption and this was quite unnecessary for the decision. In the words of Glanville Williams, To use an irrebuttable presumption in a case like this creates a fiction of the most revolting kind. It is a fiction that might have been expected in the age before Bentham, but comes badly from judges of the twentieth century ... it opens the door to an increase in the number of crimes of fictitious intent. Worse than this, the crimes of fictitious intent appear to be treated in the judgment as the normal category, crimes of actual intent being exceptional. 10

And, with an irrebuttable presumption, what happened to Viscount Sankey's "golden thread" running through the history of the criminal law whereby the burden of proof rests on the prosecution? "Strong reliance", continued Viscount Kilmuir, was, however, placed on the case of R v. Steane 11 in which Lord Goddard, Cl, said: 10

Criminal Law. 96/7. 2nd edn. 1961.

11

[1947] 1 All ER. 813.

60 Famous Cases

No doubt, if the prosecution prove an act the natural consequence of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged, but if on the totality of the evidence there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury's satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted. That, however, was a very special case. The appellant had been charged and convicted of doing acts likely to assist the enemy, with intent to assist the enemy. His case was that while he might have done the acts likely to assist the enemy he had only done so out of duress and in order to save his wife and children. Accordingly, this was a case where over and above the presumed intent there had to be proved an actual intent or, it might be said, a desire by the appellant to assist the enemy. The last criticism of the summing-up which was raised before your lordships was in regard to the meaning which the learned judge directed the jury was to be given to the words 'grievous bodily harm.' The passages of which complaint is made are the following: 'When one speaks of an intent to inflict grievous bodily harm upon a person, the expression grievous bodily harm does not mean for that purpose some harm which is permanent or even dangerous. It simply means some harm which is sufficient seriously to interfere with the victim's health or comfort. In murder the killer intends to kill, or to inflict some harm which will seriously interfere for a time with health or comfort. If the accused intended to do the officer some harm which would seriously interfere at least for a time with his health and comfort, and thus perhaps enable the accused to make good his escape for the time being at least, but that unfortunately the officer died instead, that would be murder too.' The direction in these passages was clearly based on the well known direction of Willes, J., in R v. Ashman 12 and on the words used by Graham, B., in R v. Cox 13. Indeed, this is a direction which is commonly given by judges in trials for the statutory offence under section 18 of the Offences Against the Person Act, 1861, and has on occasions been given in murder trials: cf. R v. Vickers 14. My lords, I confess that whether one is considering the crime of murder or the statutory offence, I can find no warrant for giving the words 'grievous bodily harm' a meaning other than that which the words convey in their ordinary and natural meaning. 'Bodily harm' needs no explanation and 'grievous' means no more and no less than 'really serious.' In this connection your lordships were referred to the judgment of the supreme court of Victoria in the case of R v. Miller. 1s In giving the judgment of the court, Martin, J., having expressed the view that the direction of Willes, J., could only be justified, if at all, in the case of the statutory offence, said, 'It is not a question of statutory construction but a question of the intent required at common law to constitute the crime of murder. And there does not appear to be any justification for treating the expression 'grievous bodily harm' or the other similar expressions used in the authorities upon this

12 13 14

15

[1858] 1 F. & F. 88. [1818] Russ. & Ry. 362. [1957] 2 ALL ER 741. [1951] V.L.R. 346.

Gyspy Jim Smith 61 common law question which are cited above as bearing any other than their ordinary and natural meaning.' In my opinion, the view of the law thus expressed by Martin, J., is correct, and I would only add that I can see no ground for giving the words a wider meaning when considering the statutory offence. It was, however, contended before your lordships on behalf of the respondent that the words ought to be given a more restricted meaning in considering the intent necessary to establish malice in a murder case. It was said that the intent must be to do an act 'obviously dangerous to life' or 'likely to kill.' It is true that in many of the case the likelihood of death resulting has been incorporated into the definition of grievous bodily harm, but this was done, no doubt, merely to emphasise that the bodily harm must be really serious, and it is unnecessary, and I would add inadvisable, to add anything to the expression 'grievous bodily harm' in its ordinary and natural meaning. To return to the summing-up in the present case, it is true that in the two passages cited the learned judge referred to 'grievous bodily harm' in the terms used by Willes, J., in R v. Ashman, but in no less than four further passages, and in particular in the vital direction given just before the jury retired, he referred to 'serious hurt' or 'serious harm.' Read as a whole, it is, I think, clear that there was no misdirection. Further, on the facts of this case it is quite impossible to say that the harm which the respondent must be taken to have contemplated could be anything but of a very serious nature coming well within the term 'grievous bodily harm.' Before leaving this appeal I should refer to a further contention which was but faintly adumbrated, namely, that section 1(1) of the Homicide Act, 1957, had abolished malice constituted by a proved intention to do grievous bodily harm, and that, accordingly, R v. Vickers, which held the contrary, was wrongly decided. As to this it is sufficient to say that in my opinion the Act does not in any way abolish such malice. The words in parenthesis in section 1 (1) of the Act and a reference to section 5 (2) make this clear beyond doubt.

The marginal note to section 1 of the Act reads, Abolition of constructive malice", and section 1 (1) reads: 11

Where a person kills another in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for a killing to amount to murder when not done in the course or furtherance of another offence.

Section 5(2) reads: If, in the case of any murder falling within the foregoing subsection [a list of what constituted capital murder], two or more persons are guilty of the murder, it shall be capital murder in the case of any of them who by his own act caused the death of, or inflicted or attempted to inflict grievous bodily harm on, the person murdered, or who himself used force on that person in the course or furtherance of an attack on him; but the murder shall not be capital murder in the case of any other of the persons guilty of it.

In the result, the Lord Chancellor concluded, that the appeal should be allowed and the conviction of capital murder restored. The other law lords agreed and a largely objective test of liability in murder was established. In other words the test was not what the accused contemplated but what a reasonable person would have contemplated as the natural and probable consequence of an act. In the event the death sentence was commuted by the home secretary in fulfilment of his pledge.

62 Famous Cases

Aftermath Despite the changes in legislation and case law that followed this judgment the trial can properly be regarded as a landmark case precisely because of its repercussions and what they led to. It is not too strong to say that the decision of the law lords shocked, and brought high level and devastating criticism from, important elements in both academic legal circles and among lawyers, not least Gerald Gardiner QC who was to become lord chancellor in Harold Wilson's first government in 1964. The Criminal Law Review commented that, "This remarkable decision lays down a test for the law of murder which is staggering in its severity. The only mens rea which the prosecution need prove, it seems, is an intention to do 'something to someone'. The thing so done must be unlawful, it must be something which a reasonable man would foresee as likely to cause death or grievous bodily harm and it must in fact cause death ... it is irrelevant whether he foresaw the likelihood or even the possibility of death or grievous bodily harm as the result of his actions.,,16 According to this ruling there was no longer any need in murder trials to prove an intent to kill or to do grievous bodily harm. The only intent required was an intent to do something unlawful to someone. As Glanville Williams, wrote after the trial, At common law by a form of murderous malice ... where the accused intended to cause grievous bodily harm, and death followed in consequence, he could be held guilty of murder. Now, in DPP v Smith the House of Lords has set its seal to an extensive interpretation of this rule which, if logically pressed, must inevitably reintroduce the forms of constructive malice purported to be abolished by section 1 of the Homicide Act, and indeed give them in some respects a wider extension than they possessed under the old law." To put matters another way, the case decided: First, that an intention to do an unlawful act aimed at another person was malice aforethought provided the act. was of such a kind that the ordinary responsible man would, in all the circumstances of the case, have contemplated death or grievous bodily harm as its natural and probable consequence. As the same commentary in the Criminal Law Review already referred to observed, 11

Cunningham17 [which stressed a subjective test] was cited in argument but not referred to in the judgment. Remarkably, however, the judgment of Palles C.B. in R v. Faulkner18 holding that the test of malice is an objective one, was cited with approval. Faulkner, as a decision of the Irish Court of Crown Cases Reserved, is clearly inferior as an authority in England to Cunningham. Moreover, it is by no means clear that Palles C.B. was not in a minority, for two of the four judges whose judgments are reported seem to be in favour of the subjective view for which the accused in the present case was contending. Palles CB's judgment is plainly inconsistent with the law as laid down by the Court of Criminal Appeal in Cunningham. Again, it can hardly have been intended to overrule Cunningham (as well as the line of longstanding cases which lay down the law on malice in similar terms) and the law of murder thus departs from the general principle of English criminal law in a fundamental particular, partly on the authority of an Irish judge who was probably dissenting anyway. p.766 (1960) [1957] 2 QB 396 (C.C.A.). 18 [1877] 13 Cox 550. 16

17

Gyspy Jim Smith

63

Secondly, that"grievous bodily harm" meant really serious bodily harm both in the law of murder and under section 18 of the Offences against the Person Act, 1861 which provided for punishment of unlawfully and maliciously wounding or causing grievous bodily harm with intent to do so. Thirdly, that implied malice aforethought shown by an intention to commit grievous bodily harm was not affected by section 1 of the Homicide Act, 1957. Fourthly, the felony-murder rule which section 1 of the Act was intended to abolish was in effect restored. By this rule it was deemed to be murder when someone was killed in the course of an unlawful act of violence, even where there was no intention to kill or, indeed, harm, and the killing was purely an accident. The classic example, given by Sir Edward Coke in 1644, was that if A, meaning to steal a deer in a park, shot at the deer and, by the glance of his arrow killed a boy hidden in a bush, that was murder and not manslaughter as the act was unlawful, even though A had had no intent to hurt the boy and had not even known of his existence. It involved a form of constructive malice and was confirmed by the House of Lords as late as 192019 although many judges .despaired of it and Parliament attempted to abolish it with the Homicide Act.20 With Smith the rule was actually extended in that it was not confined to felonies but included all unlawful acts. The first of these matters decided by the case is generally, but not conclusively, considered to have been later overruled by section 8 of the Criminal Justice Act, 1967, the effect of which was to ensure that a summing-up in murder trials would stress the subjective te?t of intent. Section 8 of the Criminal Justice Act, 1967 reads: "A court or jury in determining whether a person has committed an offence (a) shall not be bound in law to infer that he intended or foresaw the result of his actions by reason only of its being a natural and probable consequence of those actions, but (b) shall decide whether he did intend or foresee that result by reference to all the evidence drawing such inferences from the evidence as appear proper in the circumstances." This section gave legislative effect to the first of three proposals on the issue made by the Law Commission, set up by the Wilson government. The other two proposals were: (i) "Where a person kills another, the killing shall not amount to murder unless done with intent to kill" and (ii) "A person has an intent to kill if he means his actions to kill or if he is willing for his actions, though meant for another purpose, to kill in accomplishing that purpose." If, as the Commission probably intended, this had been enacted simultaneously with the other two the doctrine of Smith's case would have disappeared without trace. It retained its validity in cases of murder, however, as an element of substantive law and not of the law of evidence. The distinguished jurist and legal historian Mr Justice Stephen held in R v. Serne21 that the phrase "constructive murder" had no legal meaning whatever and, indeed, it has since been abandoned although malice aforethought may still be 19 20

21

[1920] AC 479. See Hansard, 17 July 1957. [1887] 16 Cox C.C. 311.

64 Famous Cases

express or implied. The definition of murder, he told the jury, was unlawful homicide with malice aforethought and the words "malice aforethought" were technical. They could not, therefore, be construed by ordinary rules of language. It was murder to kill another by an act known to be dangerous to life but the mere fact that the act was done in the course of a felony might not in itself be sufficient. Earlier, in the Fortnightly Review, Stephen had written that murder had been defined for over 200 years as killing with malice aforethought. "From that time to this," he added, "successive generations of judges have racked their ingenuity, first of all, in affixing strange, unnatural meanings to the two words 'malice' and 'aforethought'; and then, in reconciling each other's dicta on the subject." Malice, he said, might be express or implied, presumed or rebutted. The intricacies were recorded in the text books. Yet all of them could be dispensed with, and the law reduced to a perfectly plain shape, if those two words were rejected and the crime defined with reference to the intention with which the act causing death was done. "Once hit upon this clue to the labyrinth, and everything falls into its place, like a tangle of which you have found the knot." Regrettably the labyrinth still plagues the law of murder. Today, malice aforethought is said to consist of the intention of the accused to: (i) unlawfully kill another human being; or (ii) unlawfully cause grievous bodily harm to another.

It was at first thought that Smith had laid down a third category, namely, that malice aforethought exists if the accused intended to do something unlawful to someone which he knows is by its nature likely to kill or cause grievous bodily harm, even though he was unaware of the actual risk. This would not come within the reach of section 8 of the Criminal Justice Act 1967 which covers how intention is established and not whether it is required for a particular offence. However, beliefs of this kind were negatived by the House of Lords in the much later case of Moloney22, where it was held that foresight of consequences, as an element bearing on the issue of intention in murder or any other crime of specific intent, belonged not to the substantive law, but to the law of evidence. In the rare cases in which it was necessary for the judge to direct a jury by reference to foresight of consequences he needed to do no more than invite them to consider two questions. First, was death or really serious injury in a murder case a natural consequence of the defendant's voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury had then to be told that if they answered yes to both questions it was a proper inference for them to draw that he intended that consequence. And in Frankland and Moore v. R23 the Privy Council said that this alleged third category in the decision in Smith did not accurately represent the common law and it would be a misdirection to direct a jury in the manner it set out. In laying down an objective test of liability, it said, Smith did not represent the common law of England.

22 23

[1985] AC 905. [1987] AC 576.

Gyspy Jim Smith 65 24

Yet in 1981, in a case involving a different Cunningham , the House of Lords finally confirmed that an intention to cause grievous bodily harm constitutes malice aforethought with the result that an accused can be found guilty of murder although he did not foresee death even as a remote possibility. Legislation is still clearly required to bring principle and consistency to the law of murder. In this regard the Law Commission's draft Criminal Code which was laid before Parliament in April 1989 is highly relevant. 25 Section 56 reads: A person who kills another(a) intending to kill; or (b) intending to cause serious injury and being aware that he may kill; [or intending to cause fear of death or serious injury and being aware that he may kill], is guilty of murder, unless section 58, 60, 61, 65 or 67 applies.

Sections 58, 60, 61, 65 and 67 provide for offences other than murder (such as manslaughter) and deal respectively with cases involving diminished responsibility, provocation, the use of excessive force, suicide pacts and infanticide.

24

[1982] AC 566.

25

Law Corn. No. 143.

PARTIII

Civil Cases CHAPTERS

Donoghue v. Stevenson Prior to the case of Donoghue v. Stevenson a negligent manufacturer of a dangerously defective product was not liable to a consumer to whom it caused personal injury. The manufacturer had made his or her contract with the seller not the consumer. That position was reversed by the ratio decidendi of this case. Perhaps more importantly, it established in obiter dicta the general principle of liability for unintended harm where it is known that there is a duty of care. As a consequence, as Lord MacMillan said in his judgment, liThe criterion of judgment must adjust and adapt itself to the changing circumstances of life. The categories of negligence are never closed". In this case the majority of the court were prepared to take account of the new conditions of the mass production and extended marketiQg of products in order to protect the consumer who had no contractual relationship with the manufacturer or might not be in a position to establish anybody'S knowledge of a defect in goods which passed through many intermediate hands. The claim Mrs Donoghue (nee M'Alister), a shop assistant, averred (i.e. claimed), 1. that a friend purchased a bottle if ginger-beer for her in Minchel1a's cafe in Paisley in 1932; 2. that Minchel1a took the metal cap off the bottle, which was made of dark opaque glass, and poured some of the contents into a tumbler; 3. that, having no reason to suspect that it was anything other than pure gingerbeer, she drank some of the contents; 4. that when her friend refilled her glass from the bottle there floated out the decomposed remains of a snail; 5. that as a result she suffered from shock and sever gastro-enteritis as a result of the nauseating sight and of the impurities she had already consumed. She further averred that the ginger-beer was manufactured by the defender (the case was commenced in Scotland) to be sold as a drink to the public (including herself), that it was bottled by him and had a label bearing his name, and that he sealed the bottle with a metal cap. She also claimed that it was the duty of the defender to provide a system in his business which would prevent snails from entering his ginger-beer bottles, and to provide an efficient system of inspection of bottles prior to their being filled with ginger-beer, and that his failure in both duties caused the accident.

Donoghue v. Stevenson

67

The defender objected that the claims were irrelevant and insufficient, so that even if the pursuer proved all that she had claimed she would still not be entitled to succeed. The Lord Ordinary (Lord Moncrieff) overruled the defender's objection and wanted to proceed with the evidence. The defender appealed to the second division of the Court of Session, who confirmed their judgment in an earlier case and allowed the appeal. The pursuer appealed to the House of Lords who restored the ruling of the Lord Ordinary. In the House of Lords,l Lord Buckmaster, seemingly unaware of changes taking place in society, dissented from the majority view. He referred to a number of earlier cases and said that their general principle was stated by Lord Sumner in the case of Blacker v. Lake and Elliot, Ltd. It was that lithe breach of the defendant's contract with A to use care and skill in and about the manufacture or repair of an article does not of itself give any cause of action to B when he is injured by reason of the article proving to be defective".2 There were only two exceptions to the principle namely, where the article was dangerous in itself, or had a dangerous defect known to the manufacturer. He pointed out that in Bates v. Batey & Co. Ltd.,3 the defendants, ginger beer manufacturers, were held not liable to a consumer for injury occasioned by a bottle bursting as a result of a defect of which the defendants did not know, but which by the exercise of reasonable care they could have discovered. In his view therefore the authorities were against the appellant's contention, and, apart from authority, it was difficult to see how any common law proposition could be formulated to support her claim. The majority decision was simply to misapply to tort doctrine applicable to sale and purchase. Lord Tomlin also dissented and expressed his agreement with the remarks of Lord Buckmaster. Judgments The most important judgment was that of Lord Atkin who said: My lords, the sole question for determination in this case is legal: Do the averments made by the pursuer in her pleading, if true, disclose a cause of action? I need not restate the particular facts. The question is whether the manufacturer of an article of drink sold by him to a distributor, in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health. I do not think a more important problem has occupied your lordships in your judicial capacity; important both because of its bearing on public health and because of the practical test which it applies to the system under which it arises ... The law [of both Scotland and England] appears to be that in order to support an action for damages for negligence the complainant has to show that he has been injured by the breach of duty owed to him in the circumstances by the defendant to take reasonable care to avoid such injury. In the present case we are not concerned with the breach of the duty, if a duty exists, that would be a question of fact which is sufficiently averred and for the present purpose must be assumed. We are solely concerned with the question whether, as a matter of law in the circumstances alleged, the defender owed any duty to the pursuer to take care. [1932] AC 562. All ER. 1. [1912] 106 L.T. 533,536. 3 [1913] 3 KB. 351. 1 2

68 Famous Cases It is remarkable how difficult it is to find in the English authorities statements of general application defining the relations between parties that give rise to the duty. The courts are concerned with the particular relations which come before them in actual litigation, and it is sufficient to say whether the duty exists in those circumstances. The result is that the courts have been engaged upon an elaborate classification of duties as they exist in respect of property, whether real or personal, with further divisions as to ownership, occupation or control, and distinctions based on the particular relations of the one side or the other, whether manufacturer, salesman or landlord, customer, tenant, stranger, and so on. In this way it can be ascertained at any time whether the law recognizes a duty, but only where the case can be referred to some particular species which has been examined and classified. And yet the duty which in common to all the cases where liability is established must logically be based upon some element common to the cases where it is found to exist. To seek a complete logical definition of the general principle is probably to go beyond the function of the judge, for the more general the definition the more likely it is to omit essentials or to introduce non-essentials. The attempt was made by Brett M.R. in Heaven v. Pender4 in a definition to which I will refer later. As framed, it was demonstrably too wide, though it appears to me, if properly limited, to be capable of affording a valuable practical guide.

The "neighbour" rule At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of 'culpa', is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complaints and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

Who, then, in law is my neighbour? The answer seems to be -persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question (Authors' italics). This appears to me to be the doctrine of Heaven v. Pender as laid down by Lord Esher (then Brett M.R.) when it is limited by the notion of proximity introduced by Lord Esher himself and A.L. Smith L.J. in Le Lievre v. Gould. s Lord Esher says: 'That case established that, under certain circumstances, one man may owe a duty to another, even though there is no contract between them. If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property.' So A. L. Smith L.J.: 'The decision of Heaven v. Pender was founded upon the principle, that a duty to take care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other.' I think that this sufficiently states the truth if proximity be not confined to mere physical proximity, but be used, as I think it was intended, to extend to

4

5

[1883] 11 QBD 503, 509. [1893] QB 491, 497, 504.

Donoghue v. Stevenson 69 such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act. That this is the sense in which nearness or 'proximity' was intended by Lord Esher is obvious from his own illustration in Heaven v. Pender of the application of his doctrine to the sale of goods: IThis (Le. the rule he has just formulated) includes the case of goods, etc., supplied to be used immediately by a particular person or persons, or one of a class of persons, where it would be obvious to the person supplying, if he thought, that the goods would in all probability be used at once by such persons before a reasonable opportunity for discovering any defect which might exist, and where the thing supplied would be of such a nature that a neglect of ordinary care or skill as to is condition or the manner of supplying it would probably cause danger to the person or property of the person for whose use it was supplied, and who was about to use it. It would exclude a case in which the goods are supplied under circumstances in which it would be a chance by whom they would be used or whether they would be used or not, or whether they would be used before there would probably be means of observing any defect, or where the goods would be of such a nature that a want of care or skill as to their condition or the manner of supplying them would not probably produce danger of injury to person or property'. I draw particular attention to the fact that Lord Esher emphasizes the necessity of goods having to be 'used immediately' and 'used at once before a reasonable opportunity of inspection.' This is obviously to exclude the possibility of goods having their condition altered by lapse of time, and to call attention to the proximate relationship, which may be too remote where inspection even of the person using, certainly of an intermediate person, may reasonably be interposed. With this necessary qualification of proximate relationship as explained in Le Lievre v. Could, I think the judgment of Lord Esher expresses the law of England; without the qualification, I think the majority of the Court in Heaven v. Pender were justified in thinking the principle was expressed in too general terms. There will no doubt arise cases where it will be difficult to determine whether the contemplated relationship is so close that the duty arises. But in the class of case now before the Court I cannot conceive any difficulty to arise. A manufacturer puts up an article of food in a container which he knows will be opened by the actual consumer. There can be no inspection by any purchaser and no reasonable preliminary inspection by the consumer. Negligently, in the course of preparation, he allows the contents to be mixed with poison. It is said that the law of England and Scotland is that the poisoned consumer has no remedy against the negligent manufacturer. If this were the result of the authorities I should consider the result a grave defect in the law, and so contrary to principle that I should hesitate long before following any decision to that effect which had not the authority of this House. I would point out that, in the assumed state of the authorities, not only would the consumer have no remedy against the manufacturer, he would have none against any one else, for in the circumstances alleged there would be no evidence of negligence against anyone other than the manufacturer; and, except in the case of a consumer who was also a purchaser, no contract and no warranty of fitness, and in the case of the purchase of a specific article under its patent or trade name, which might well be the case in the purchase of some articles of food or drink, no warranty protecting even the purchase-consumer. There are other instances than of articles of food and drink where goods are sold intended to be used immediately by the consumer, such as many forms of goods sold for

70 Famous Cases

cleaning purposes, where the same liability must exist. The doctrine supported by the decision below would not only deny a remedy to the consumer who was injured by consuming bottled beer or chocolates poisoned by the negligence of the manufacturer, but also to the user of what should be a harmless proprietary medicine, an ointment, a soap, a cleaning fluid or cleaning powder. I confine myself to articles of common household use, where every one, including the manufacturer, knows that the articles will be used by other persons than the actual ultimate purchaser - namely, by members of his family and his servants, and in some cases his guests. I do not think so ill of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilized society and the ordinary claims it makes upon its members as to deny a legal remedy where there is so obviously a social wrong. It will be found, I think, on examination that there is no case in which the circumstances have been such as I have just suggested where the liability has been negatived. There are numerous cases, where the relations were much more remote, where the duty has been held not to exist...

After reviewing and distinguishing a number of earlier cases and suggesting that Bates v. Batey & Co. Ltd. had been wrongly decided, Lord Atkin continued: My lords, if your lordships accept the view that this pleading discloses a relevant cause of action you will be affirming the proposition that by Scots and English law alike a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care. It is a proposition which I venture to say no one in Scotland or England who was not a lawyer would for one moment doubt. It will be an advantage to make it clear that the law in this matter, as in most others, is in accordance with sound common sense. I think that this appeal should be allowed.

Lord Thankerton: It is necessary for the pursuer to show there was a duty owed to her by the defender, because a man cannot be charged with negligence if he has no obligation to exercise diligence. The present case is that of a manufacturer and a consumer, with whom he has no contractual relation, of an article which the manufacturer did not know to be dangerous, and, unless the consumer can establish a special relationship with the manufacturer, it is clear, in my opinion, that neither the law of Scotland nor the law of England will hold that the manufacturer has any duty towards the consumer to exercise diligence. In such a case the remedy of the consumer, if any, will lie against the intervening party from whom he has procured the article. The special circumstances from which the appellant claims that such a relationship of duty should be inferred may, I think, be stated thus - namely, that the respondent in placing his manufactured article of drink upon the market, has intentionally so excluded interference with, or examination of, the article by any intermediate handler of the goods between himself and the consumer that he has, of his own accord, brought himself into direct relationship with the consumer, with the result that the consumer is entitled to rely upon the exercise of diligence by the manufacturer to secure that the article shall not be harmful to the consumer. If that contention be sound, the consumer, on her showing that the article has reached her intact and that she has been injured by the harmful nature of the article, owing to the

Donoghue v. Stevenson 71 failure of the manufacturer to take reasonable care in its preparation prior to its enclosure in the sealed vessel, will be entitled to reparation from the manufacturer. In my opinion, the existence of a legal duty under such circumstances is in conformity with the principles of both the law of Scotland and the law of England. The English cases demonstrate how impossible it is to catalogue finally, amid the ever varying types of human relationships, those relationships in which a duty to exercise care arises apart from contract, and each of these cases relates to its own set of circumstances, out of which it was claimed that the duty had arisen. I am therefore of opinion that the appeal should be allowed.

Lord MacMillan said: ... The law takes no cognisance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty had caused damage. In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence. What, then, are the circumstances which give rise to this duty to take care? In the daily contact of social and business life human beings are thrown into, or place themselves in, an infinite variety of relations with their fellows; and the law can refer only to the standards of the reasonable man in order to determine whether any particular relation gives rise to a duty to take care as between those who stand in that relation to each other. The grounds of action may be as various and manifold as human errancy; and the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The categories of negligence are never closed. (Authors' italics). The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care, and that the party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty. Where there is room for diversity of view, it is in determining what circumstances will establish such a relationship between the parties as to give rise, on the one side, to a duty to take care, and on the other side to a right to have care taken. To descend from these generalities to the circumstances of the present case, I do not think that any reasonable man or any twelve reasonable men would hesitate to hold that, if the appellant establishes her allegations, the respondent has exhibited carelessness in the conduct of his business. For a manufacturer of aerated water to store his empty bottles in a place where snails can get access to them, and to fill his bottles without taking any adequate precautions by inspection or otherwise to ensure that they contain no deleterious foreign matter, may reasonably be characterized as carelessness without applying too exacting a standard. But, as I have pointed out, it is not enough to prove the respondent to be careless in his process of manufacture. The question is: Does he owe a duty to take care, and to whom does he owe that duty? Now I have no hesitation in affirming that a person who for gain engages in the business of manufacturing articles of food and drink intended for consumption by members of the public in the form in which he issues them is under a duty to take care in the manufacture of these articles. That duty, in my opinion, he owes to those whom he intends to consume his products. He manufactures his commodities for human consumption; he intends and contemplates that they shall be consumed. By reason of that very fact he places himself in a relationship with all the potential consumers of his commodities, and that relationship which he assumes and desires for his own ends imposes upon him a duty to take care to avoid injuring them. He owes them a duty not to convert by his own carelessness an article which he issues to them as wholesome and innocent into an article which is dangerous to life and health.

72

Famous Cases

It is sometimes said that liability can only arise where a reasonable man would have foreseen and could have avoided the consequences of his act or omission. In the present case the respondent, when he manufactured his ginger-beer, had directly in contemplation that it would be consumed by members of the public. Can it be said that he could not be expected as a reasonable man to foresee that if he conducted his process of manufacture carelessly he might injure those whom he expected and desired to consume his ginger-beer? The possibility of injury so arising seems to me in no sense so remote as to excuse him from foreseeing it. Suppose that a baker, through carelessness, allows a large quantity of arsenic to be mixed with a batch of his bread, with the result that those who subsequently eat it are poisoned, could he be heard to say that he owed no duty to the consumers of his bread to take care that it was free from poison, and that, as he did not know that any poison had got into it, his only liability was for breach of warranty under his contract of sale to those who actually bought the poisoned bread from him? Observe that I have said 'through carelessness,' and thus excluded the case of pure accident such as may happen where every care is taken. I cannot believe, and I do not believe, that neither in the law of England nor in the law of Scotland is there redress for such a case. The state of facts I have figured might well give rise to a criminal charge, and the civil consequence of such carelessness can scarcely be less wide than its criminal consequences. Yet the principle of the decision appealed from is that the manufacturer of food products intended by him for human consumption does not owe to the consumers whom he has in view any duty of care, not even the duty to take care that he does not poison them... I am anxious to emphasise that the principle of judgment which commends itself to me does not give rise to the sort of objection stated by Parke B. in Longmeid v. Holliday6 where he said: 'But it would be going much too far to say, that so much care is required in the ordinary intercourse of life between one individual and another, that if a machine not in its nature dangerous - a carriage, for instance - but which might become so by a latent defect entirely unknown, although discoverable by the exercise of ordinary care, should be lent or given by one person, even by the person who manufactured it, to another, the former should be answerable to the latter for a subsequent damage accruing by the use of it.' I read this passage rather as a note of warning that the standard of care exacted in human dealings must not be pitched too high than as giving any countenance to the view that negligence may be exhibited with impunity. It must always be a question of circumstances whether· the carelessness amounts to negligence, and whether the injury is not too remote from the carelessness. I can readily conceive that where a manufacturer has parted with his product and it has passed into other hands it may well be exposed to vicissitudes which may render it defective or noxious, for which the manufacturer could not in any view be held to be to blame. It may be a good general rule to regard responsibility as ceasing when control ceases. So, also, where between the manufacturer and the user there is interposed a party who has the means and opportunity of examining the manufacturer's product before he re-issues it to the actual user. But where, as in the present case, the article of consumption is so prepared as to be intended to reach the consumer in the condition in which it leaves the manufacturer, and the manufacturer takes steps to ensure this by sealing or otherwise closing the container so that the contents cannot be tampered with, I regard his control as remaining effective until the article reaches the consumer and the container is opened by him. The intervention of any exterior agency is intended to be excluded, and was in fact in the present case excluded...

6

[1851] 6 Exch. 761, 768; 155 E.R. 752.

Donoghue v. Stevenson 73 The burden of proof must alwaysbe upon the injured party to establish that the defect which caused the injury was present in the article when it left the hands of the party whom he sues, that the defect was occasioned by the carelessness of that party, and that the circumstances are such as to cast upon the defender a duty to take care not to injure the pursuer. There is no presumption of negligence in such a case as the present, nor is there any justification for applying the maxim, res ipsa loquitur (the thing speaks for itself). Negligence must be both averred and proved...

Explosive effects The case caused some immediate concern in the legal profession with Lord Justice Scrutton saying that Lord Atkin's pronouncement was wider than necessary and needed qualification. 7 But the decision in the case was to explode into realms far wider than the sale of goods. In its immediate sense it established a new category of duties to eventual users of defective goods, which might cause them personal injury, regardless of whether the goods were per se dangerous or that the users had no contract with the manufacturer. Since 1932, however, "manufacturer" has been held to include repairers, sub-contractors, retailers who perform negligent work on goods they are selling, such as motor cars, and suppliers of drinking water. "Products" has been extended from food and drink to include vehicles, houses, lifts and hair-dyes. However, the case also settled that the tort of negligence is capable of considerable expansion and was not tied to existing precedents. We have already noticed that Lord Macmillan said, "the categories of negligence are never closed." This was confirmed by Asquith, L.J., in Candler v. Crane Christmas & Co. 8, dealing with the liability of professional men for negligent statements, when he said: "that in accordance with changing social needs and standards new classes of persons legally bound or entitled to the exercise of care may from time to time emerge." And, in Home Office v. Dorset Yacht Co. Ltd.,9 where the owner of a yacht sued the Home Office for damage done to it by runaway Borstal boys, Lord Reid said: "The time has come when we can and should say that it (Lord Atkin's neighbour rule) ought to apply unless there is some justification or valid explanation for its exclusion." It was held that there existed a duty to take care that others do not cause damage. 1o In Anns v. Merton London Borough CounciZ in which leaseholders in a newly built block of flats sued the local authority for negligent failure to detect on inspection the inadequacy. of the foundations of the building, it was said by Lord Wilberforce that: ... the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First, one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is 7 8 9

10

1932] Farr v Butters. 2 KB 606. [1951] 2 KB 164; 1 All ER 426, CA. [1970] AC 1027: 2 All ER 297. [1978] AC 751/2; [1977] 2 All ER 498.HL.

74 Famous Cases

necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise. In Donoghue, Lord MacMillan suggested the plaintiff had to prove that the manufacturer was careless. But, unless he works in the factory this must normally be an impossible burden. Accordingly, in Grant v. Australian Knitting Mills,l1 where the plaintiff complained of dermatitis caused by underpants manufactured by the defendant which contained invisible excess sulphites, he succeeded despite the manufacturer showing that he had manufactured 4,737,600 pairs of underpants with never a complaint. The test adopted was whether, on the balance of probabilities, it was a reasonable inference to be drawn from the evidence that the harm was caused by the excess sulphites. As to negligence, it was said: If excess sulphites were left in the garment, that could only be because some one was at fault. The appellant is not required to lay his finger on the exact person in all the chain who was responsible, or to specify what he did wrong. Negligence is found as a matter of inference from the existence of the defects taken in connection· with all the known circumstances ...

And in the Court of Appeal in Home Office v. Dorset Yacht Co. Ltd., Lord Denning said: "It is, I think at bottom a matter of public policy which we, the judges, must resolve. This talk of 'duty' is simply a way of limiting the range of liability for negligence." Public policy was at work in the case of Hedley Byrne & Co. Ltd., v. Heller & Partners Ltd. 12 which extended damage to persons and property to economic loss. Despite the statement of Asquith L.J. quoted earlier, Candler v. Crane Christmas & Co. decided that an accountant who had negligently prepared a company's balance sheet, knowing that the plaintiff would decide whether to invest in that company on the strength of that balance sheet, was held not liable for his negligence when the plaintiff lost money. In Hedley Byrne the plaintiffs asked their bankers to inquire into the financial stability of a company with which they were having business dealings. Their bankers made inquiries of the company's bankers who carelessly gave favourable references. Reliance on those references caused the plaintiffs to lose £17,000. They sued the company's bankers for careless statements but failed only because the defendants had expressly disclaimed any responsibility.13 However, all five law lords in the case, faced with the accepted view since Derry v. Peak in 1889, that only fraudulent statements were actionable, agreed that a negligent misrepresentation, spoken or written, could give rise to an action for foreseeable financial loss, apart from any contractual or fiduciary relationship. But the saga. does not end there. In 1977 the Law Commission issued its Report on Liability for Defective Products 14 to be followed a year later by the report of the Pearson Commission on Civil Liability and Compensation for Personal Injury. The latter was set up following the scandal arising from the disastrous side-effects of the [1936] AC 85. [1964] AC 465. 13 Sections 2 and 11 of the Unfair Contract Terms Act 1977 subsequently made such disclaimers made in the course of business void if they are unreasonable. 14 Cmnd 6831. 11

12

Donoghue v. Stevenson 75

defective drug thalidomide. Both of them, and the Council of Europe15 and the 16 Council of European Communities , proposed imposing liability for personal injury even in the absence of negligence. This arises from pressure to protect consumer interest and bring the law of torts in line with that of contract where a purchaser of a defective product can claim against his retailer without having to prove fault. But strict liability is unlikely to be introduced by the courts and will depend on parliament. This principle has even been extended to a manufacturer who now bears the burden of liability for damage done by things which only subsequent technology has shown to be defective, as with the thalidomide case. The incident of the snail in the ginger-beer bottle was in essence a trivial one. Yet the impact of the case has been enormous in favouring the individual in relations with corporations. The speech of Lord Atkin is an interesting example of judicial decision-making. He considered the cases that had established the preexisting law and managed to distinguish them because the relationship between the parties was too far apart for a duty of care to arise or because he found their reasons to be obiter. But, whilst changing the law to ensure that the principles of the law prevailed, he invoked an extended ethical use of the concept of "neighbours". Lords MacMillan and Thankerton were prepared to follow Atkins' lead, whilst Tomlin and Buckmaster found themselves unable to do so, and the majority prevailed.

15

16

Strasbourg Convention on Products Liability in Regard to Personal Injury and Death, 1977. The Third Draft Directive of the E.E.C. 1979.

CHAPTER 6

Lord Denning's "High Trees" Case In this case Mr Justice Denning, as he then was, changed the law and made his

mark as a junior judge at least on the legal profession if not the general public. His judgment, in re-assessing the strict rules of law concerning consideration" and estoppel was controversial but has never been overruled. The full title of the case is: 11

Central London Property Trust Ltd v. High Trees House Ltd. 1 The Facts By a lease under seal dated 24 September 1937 the plaintiff company let to the defendant company (a subsidiary of the plaintiffs) a block of flats for a term of ninety-nine years from 29 September 1937 at a ground rent of £2,500 a year. In the latter part of 1939, owing to war conditions then prevailing, only a few of the flats in the block were let to tenants and it became apparent that the defendants would be unable to pay the rent reserved by the lease out of the rents of the flats. Discussions took place between the directors of the two companies and as a result on 3 January 1940 a letter was written by the plaintiffs to the defendants confirming that the ground rent of the premises would be reduced from £2,500 to £1,250 as from the beginning of the term. The defendants thereafter paid the reduced rent. By the beginning of 1945, towards the end of the war, all.the flats were let but the defendants continued to pay only the reduced rent. On 21 September 1945 the plaintiffs wrote to the defendants claiming that rent was payable at the rate of £2,500 a year and subsequently, in order to determine the legal position, they initiated friendly proceedings in which they claimed the difference between rent at the rates of £2,500 and £1,250 for the quarters ending 29 September and 25 December 1945. By their defence the defendants pleaded that the agreement for the reduction of the ground rent operated during the whole term of the lease and, as alternatives, that the plaintiffs were estopped from demanding rent at the higher rate or had waived their right to do so down to the date of their letter of 21 September. It was held: 1. That where parties enter into an arrangement which is intended to create legal relations between them and in pursuance of such arrangement one party makes a promise to the other which he knows will be acted on and which is in fact acted on by the promisee, the court will treat the promise as binding on the promisor to the extent that it will not allow him to act inconsistently with it even although the promise may not be supported by consideration in the strict sense and the effect of the arrangement made is to vary the terms of a contract under seal by one of less value; and 2. That the arrangement made between the plaintiffs in January 1940 was one which fell within the above category and, accordingly, that the agreement for the reduction of the ground rent was binding on the plaintiff company, but 1

[1946] lKB 133.

Lord Denning's "High Trees" Case

77

that it only remained operative so long as the conditions giving rise to it continued to exist and that on their ceasing to do so in 1945 the plaintiffs were entitled to recover the ground rent claimed at the rate reserved by the lease. Legal argument Robert Fortune, counsel for the plaintiffs, argued that his clients were entitled to recover rent on the basis of it being at the rate of £2,500 a year, the amount reserved by the lease. The document in question was under seal and consequently could not be varied by a parol agreement or an agreement in writing not under seal. Further, if there was a fresh agreement it was void since it was made without consideration and in any event it was only an agreement of a purely temporary character necessitated by the difficult conditions prevailing when it was made, and coming to an end when those conditions ceased to exist at the end of 1944 or the beginning of 1945. Even supposing that the plaintiffs were held to be estopped from denying the existence of a new agreement, such estoppel would only operate so long as the conditions giving .rise to the arrangement on which the estoppel was based, continued. Counsel for the defendants, Ronald Hopkins, claimed that the company was only liable to pay rent at the rate of £1,250 per annum. The letters passing between the parties and the entry in the minute book of the plaintiff company constituted evidence of an agreement, which, although possibly not supported by such consideration as would strictly be necessary at common law, was of a type which a court of equity would enforce if it were satisfied that the parties intended to give contractual efficacy to that to which they were agreeing. The reduction in rent was made so that the defendants might be enabled to continue to run their business and that was sufficient to enable a court to hold the agreement binding on the plaintiff company. With regard to the variation of an agreement under seal by a parol agreement or an agreement in writing, in Berry v. Berry2 Mr Justice Swift said it was true that a covenant could not be varied except by some contract of equal value, but, he continued "although that was the rule of law, the courts of equity have always held themselves at liberty, to allow the rescission or variation by a simple contract of a contract under seal by preventing the party who has agreed to the rescission or variation from suing under the deed. In Nash v. Armstrong 3 itwas held that a parol agreement not to enforce performance of a deed and to substitute other terms for some of its covenants was good consideration for a promise to perform the substituted contract ..." If those contentions failed, said counsel, the defendants relied· on the doctrine of estoppel. The proposition of law laid down in Re WiIIiam Porter & Co., Ltd 4 exactly applied to the present case in which the reduction in the rent was made in order that the defendants might be able to carry on their business. As a result of the reduction the business was carried on and the defendants arranged their affairs on the basis of the reduced rent with the result that the plaintiffs were estopped from claiming any rent beyond £1,250 per annum for the whole period of the lease. Finally, he said, the letters passing between the parties constituted a waiver by the [1929] 2 KB 316, 319. [1861] 10 CB (N.S) 259. 4 [1937] 2 All E R 361.

2

3

78 Famous Cases

plaintiffs of their right to a higher rent than £1,250 down to the date of their letter of 21 September 1945. Counsel had argued the case well, Denning was to comment many years later, "but they had not the reserves at their command as I had. I delivered judgment straight off the reel- with a tidying up for the law reports"S The judgment Mr Justice Denning stated the facts and continued6 : If I were to consider this matter without regard to recent developments in the law, there is no doubt that had the plaintiffs claimed it they would have been entitled to recover ground rent at the rate of £2,500 a year from the beginning of the term, since the lease under which it was payable was a lease under seal, which according to the old common law, could not be varied by an agreement by parol (whether in writing or not), but only by deed. Equity, however, stepped in and said that if there has been a variation of a deed by a simple contract (which in the case of a lease required to be in writing would have to be evidenced by writing) the courts may give effect to it as is shown in Berry v Berry. That equitable doctrine, however, could hardly apply in the present case because the variation here might be said to have been made without consideration. With regard to estoppel, the representation made in relation to reducing the rent was not a representation of an existing fact. It was a representation, in effect, as to the future, namely, that payment of the rent would not be enforced at the full rate but only at the reduced rate. Such a representation would not give rise to an estoppel because, as was said in Jorden v Money7 a representation as to the future must be embodied as a contract or be nothing. But what is the position in view of developments in the law in recent years? The law has not been standing still since Jorden v Money. There has been a series of decisions over the last fifty years which, although they are said to be cases of estoppel are not really such. There are cases in which a promise was made which was intended to create legal relations and which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made, and which was in fact so acted on. 9 These cases to which I particularly desire to refer are: Fenner v Blake8, In re Wickham , Re WiIIiam Porter & Co., LtdlO and Buttery v Pickard. 11 As I have said they are not cases of estoppel in the strict sense. They are really promises - promises intended to be binding, intended to be acted on, and in fact acted on. Jorden v Money can be distinguished, because there the promisor made it clear that she did not intend to be legally bound, whereas in the cases to which I refer the proper inference was that the promisor did intend to be bound. In each case the court held the promise to be binding on the party making it, even though under the old common law it might be difficult to find any consideration for it. The courts have not gone so far as to give a cause of action in damages for the breach of such a promise, but they have refused to allow the party making it to act inconsistently with it. It is in that sense and that sense only, that such a promise gives rise to an estoppel.

5 6

7 8

9 10 11

Iris Freeman. Lord Denning: A Life. 179. 1993. [1946] 1 KB 133. [1854] 5 HLC 185. [1900] 1 QB 426. [1917] 34 TLR 158. [1937] 2 All ER 361. [1946] WN 25.

Lord Denning's "High Trees" Case

79

The decisions are a natural result of the fusion of law and equity: for the cases of

Hughes v Metropolitan Rly. Co. 12, Birmingham and District Lane Co. v London & North Western Rly. Co.1 3 and Salisbury (Marquess) v Gilmore14, afford a sufficient basis for saying that a party would not be allowed in equity to go back on such a promise. In my opinion, the time has now come for the validity of such a promise to be recognized. The logical consequence no doubt is that a promise to accept a smaller sum in discharge of a larger sum, if acted upon, is binding notwithstanding the absence of consideration: and if the fusion of law and equity leads to this result, so much the better. That aspect was not considered in Foakes v Beer15• At this time of day however, when law and equity have been joined together for over seventy years, principles must be reconsidered in the light of their combined effect. It is to be noticed that in the Sixth Interim Report of the Law Revision Committee, paras. 35 and 40, it is recommended that such a promise as that to which I have referred, should be enforceable in law· even though no consideration for it has been given by the promisee. It seems to me that, to the extent I have mentioned, that result has now been achieved by the decisions of the courts. I am satisfied that a promise such as that to which I have referred is binding and the only question remaining for my consideration is the scope of the promise in the present case. I am satisfied on all the evidence that the promise here was that the ground rent should be reduced to £1,250 a year as a temporary expedient while the block of flats was not fully, or substantially fully, let owing to the conditions prevailing. That means that the reduction in the rent applied throughout the years down to the end of 1944, but early in 1945 it is plain that the flats were fully let, and, indeed, the rents received from them (many of them not being affected by the Rent Restrictions Acts), were increased beyond the figure at which it was originally contemplated that they would be let. At all events the rent from them must have been very considerable. I find that the conditions prevailing at the time when the reduction in rent was made had completely passed away by the early months of 1945. I am satisfied that the promise was understood by all parties only to apply under the conditions prevailing at the time when it was made, namely, when the flats were only partially let, and that it did not extend any further than that. When the flats became fully let, early in 1945, the reduction ceased to apply ... In those circumstances, under the law as I hold it, it seems to me that rent is payable at the full rate for the quarters ending 29 September and 25 December 1945. If the case had been one of estoppel, it might be said that in any event the estoppel would cease when the conditions to which the representation applied came to an end, or it also might be said that it would only come to an end on notice. In either case it is only a way of ascertaining what is the scope of the representation. I prefer to apply the principle that a promise intended to be binding, intended to be acted on and in fact acted on, is binding so far as its terms properly apply. Here it was binding as covering the period down to the early part of 1945, and as from that time full rent is payable ... I therefore give judgment for the plaintiff company for the amount claimed.

Although Denning gave judgment for the plaintiffs the importance of the judgment lies in the fact that he made it plain that if they had sued for arrears of rent for the whole period from 1940 to 1945 their claim would have been defeated by the 1940 agreement. Although there was no consideration for the promise to reduce the rent this was not a vital factor as the defendant's were not seeking to [1877] 2 AC 439,448. [1888] 40 Ch D 268, 286. 14 [1942] 2 KB 38, 5I. 15 [1884] 9 AC 605.

12 13

80 Famous Cases

enforce a contract. And the common law doctrine of estoppel (whereby if a person by a representation induces another to change his position on the faith of it, he cannot afterwards deny the truth of his representation) was unavailable since in Jorden v. Money the House of Lords had decided it might operate only on a misrepresentation of existing fact but not on a promise of future conduct as in High

Trees. Accordingly, Denning turned to an equitable doctrine similar to common law estoppel even though its judicial backing was slender. But as the plaintiffs in High Trees sued only for rent that had accrued after the expiry of their promise Denning's indication that their promise would have prevented them from claiming the full rent for the period before 1945 was not part of his decision and was obiter dicta. However, its full force was immediately felt in legal circles and in the Court of Appeal in Combe v. Combe16 in 1951 Lord Justice Denning (as he had become) clarified this: The principle stated in the High Trees case ... does not create new causes of action where none existed before. It only prevents a party from insisting upon his strict legal rights, when it would be unjust to allow him to enforce them, having regard to the dealings which have taken place between the parties. The principle, as I understand it, is that, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him; but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration but only by his word.

Significance This was, indeed, a new principle based upon Denning's sense of justice. He himself explained what made the case important in The Discipline of the Law17 when he said that it had helped to narrow the gap between extreme rules of archaic law such as "consideration" and estoppel and social necessities of the twentieth century. It was, and remains, controversial. It was sternly criticised by Lord Simonds in Tool Metal Manufacturing Co Ltd·v Tungsten Electric Co Ltd 18 but extended to conduct so that the need for writing under the Sale of Goods Act 1893 was dispensed with when Denning said: "If one party, by his conduct, leads another to believe ·that the strict rights arising under a contract will not be insisted upon, intending that the other should act on that belief, and he does act on it, then the first party will not afterwards be allowed to insist on the strict rights when it would be inequitable for him to do SO.,,19 In effect the doctrine of consideration no longer applies except in a few cases and has been replaced with the precept that a man's word is his bond.

[1951] 2 KB 215. P 197. 1979. 18 [1955] 1 WLR 76l. 19 [1952] Plasticmoda Societa per Azioni v Davidsons (Manchester) Ltd. 1 Lloyd"s Rep. 527.

16

17

CHAPTER 7

Rookes v. Barnard Following the Liberal government's Trade Disputes Act of 1906 it was believed by both lawyers and the labour movement alike that trade unionists acting in a trade dispute were immune from legal action for conspiracy unless the action taken would have been actionable against an individual acting alone, or as the Act puts it, without any combination. Further, for 50 years no one had succeeded in establishing that a threat to strike was actionable. Then, in 1964, in Rookes v. Barnard the House of Lords decided that a threat to strike was a threat to do something illegal, likening it to a threat to commit violence. Indeed, Lord· Hodson said, in a novel theory for the twentieth century, liThe injury or suffering caused by strike action is very often Widespread as well as devastating and a threat to strike would be expected to be certainly no less serious than a threat of violence". This was a case not about the closed shop" but about the right to t!rreaten and organise a strike in a trade dispute. 11

The facts The plaintiff, Douglas Rookes, was employed by the British Overseas Airways Corporation as a senior skilled draughtsman in their design office at Heathrow Airport. Following an internal dispute in 1955 he left his trade union, the Association of Engineering and Shipbuilding Draughtsmen. Without first asking BOAC to dismiss Rookes because BOAC was a closed shop, his branch of the union at the Airport instead passed a resolution that BOAC should be told that all labour would be withdrawn unless the plaintiff was removed from the design office within three days. Because it was an all-union shop BOAC could not employ non-union labour. At the meeting the defendants, Alfred Barnard, Trevor Fistal and Reginald Silverthorne, spoke in favour of the resolution. The first two were employees of BOAC and all three were officials of the union. As a consequence of the resolution BOAC gave the appropriate notice and dismissed the plaintiff with a week's salary in lieu of notice. He then, since he could not sue BOAC for breach of contract, sued the defendants for damages. He claimed they had used unlawful means to induce the corporation to terminate its contract of service with him and had unlawfully conspired to induce the corporation to injure him. Agreements between BOAC and the union provided not only for 100 per cent trade union membership but also that there should be no strikes by the employees or lock-outs by the employers. Since the lino strikes" term was incorporated in the individual contracts of employment the threat by the employees to withdraw their labour constituted a threat of breach of contract. By their defences, however, each defendant contended that the acts alleged against them, if done in combination with the defendants or any other person, were done for the purpose of furthering the legitimate and bona fide interests of the defendants and the members of the union. And further and alternatively, that such acts were done in contemplation and furtherance of a trade dispute and that the provisions of sections 1 and 3 of the Trade Disputes Act, 1906 were therefore applicable. Section 1 of the 1906 Act reads:

82 Famous Cases An act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act, if done without any such agreement or combination, would be actionable.

Section 3 reads: An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business, or employment of some other person to dispose of his capital or his labour as he wills.

The case 1 The case was heard at first instance by Mr Justice Sachs who ruled that:

1. the terms of agreement between BOAC and the union were part of the contract of employment of each of the members of the union employed in the design office at London Airport; 2. there was, at all material times, a trade dispute in existence and all the acts complained of were done in pursuance of that trade dispute; 3. the questions for the jury were to be those that were in fact left to them; 4. the question whether section 3 of the 1906 Act gave protection to the defendants should be decided after the jury had answered the agreed questions and that the court and any appellate court should have power to draw from the answers given by the jury and from the evidence such inferences of fact as might become necessary. The questions left to the jury were as follows: (a) Was there a conspiracy to threaten strike action by members of the trade union against the corporation to secure the withdrawal of the plaintiff from the design office? If so, (i) was Bamard a party? (ii) was Silverthome a party? (ill) was Fistal a party? (b) Was a threat to take strike action against the corporation to secure the withdrawal of the plaintiff from the design office made by (i) Bamard? (ii) Silverthome? (ill) Fistal? (c) Did threats of strike action by members of the trade union cause (i) suspension of the plaintiff from his work at BOAC? (ii) the dismissal of the plaintiff from BOAC? (d) What damages should be awarded to the plaintiff if the threat of strike action caused the plaintiff's dismissal? The jury answered all the questions except the last in the affirmative and found for the plaintiff in the sum of £7,500 after an instruction by the judge allowing them to award exemplary damages. In his judgment Mr Justice Sachs dealt first with sections 1 and 3 of the 1906 Act. He said:

1

[1961] 3 WLR. 438.

Rookes v. Barnard

83

... I ruled that threats to act in breach of the agreement between BOAC and the union would constitute intimidation and would be actionable as a tort if, in the present case, they were likely to harm the plaintiff and were followed by reasonably foreseeable damage. That is the basis on which the defendants failed in their plea that, in relation to acts done in pursuance of the conspiracy to which the jury have found them to be a party, they are protected by section 1 of the Trade Disputes Act, 1906. That, too, is the basis on which it now becomes necessary to examine the question whether section 3 of the same Act protects them.

After considering a number of authorities the judge continued: ... I have come to the conclusion that the defendants in the present case derive no protection from section 3 any more than they do from section 1. A member of a trade union who threatens to break his contract of employment is ... in just the same position of any other citizen: and in that respect it makes no difference whether he makes that threat individually, whether he makes it in combination with others, or whether he makes it in furtherance of a trade dispute.

The first appeal The defendants appealed successfully to the Court of Appeal where they were represented by Gerald Gardiner Q.C. (afterwards Lord Chancellor) who, in his opening address said that the decision at first instance had driven a "coach and four" through the 1906 Act. The Court of Appeal (Lords Justice Sellers, Donovan , and Pearson) apparently agreed with him and they allowed the appeal, holding: 1. that to be immune from action by reason of section 1 of the Act it must be only concerted action which caused the injury and no protection was given if the act done was tortious and did damage apart from the combination. 2. but that a threat to break a contract was not an "unlawful act" which was actionable by a third party as a tort, as a breach of contract itself was not forbidden by law and could not in ordinary language be described as "unlawful." It was simply a breach of an obligation which the parties had fixed for themselves and was actionable in the civil courts under the agreement and not otherwise. It could not be turned into a tort. 3. that the tort of intimidation was an established tort, but intimidation was restricted to acts of violence or threats or fraud of a tortious or criminal nature and it could not be extended to cover a mere threat to break a contract. 4. that, in relation to the tort of conspiracy, "unlawful means" connoted means that were criminal or tortious and threats by the first and second defendants were neither. The plaintiff had established no actionable wrong as he had not established a conspiracy to injure him, the predominant purpose of the combination being the legitimate promotion of the interests of the persons combining. 2 Sellers L.J. said that: The decision [at first instance] in favour of the plaintiff was reached not essentially on the jury's views of the facts left to them, which were scarcely in dispute, but on the judge's judgment of the law and on his additional conclusions of fact, left to him by the 2

[1962] 3 WLR. 260.

84 Famous Cases

agreement of the parties, incidental to the law which he applied ... The defendants were pursuing trade union interests (in preserving the 'closed shop') and not merely seeking to injure the plaintiff and in so far as they were acting in combination it would on the face of things not appear that what they were doing would fall outside the ambit of the Trade Disputes Act, 1906, or that any question of actionable wrongdoing could arise.

Section 3 of the Act, he continued, gave protection only against criminal law but section 1 gave relief against civil liability and was relied on by the defendants. The exemption from both criminal responsibility and from civil liability depended on whether the "act done" or "to be done" would, in the absence of combination, be a crime on the one hand or "actionable" on the other - "actionable" that must be at the suit of the person complaining of the combination. He continued: I would observe that the reality of the matter was not that anyone person's threat to leave BOAC in breach of his contract so long as the plaintiff remained in the design office brought about the plaintiff's dismissal, or that an isolated threat to withdraw or, indeed, actual withdrawal of one man's labour would have had, or could reasonably have been foreseen to have, any effect on the plaintiff's employment. Throughout it was the combination of the 70 members of the union which created the effective pressure. In effect - although the plaintiff did not so plead - the defendants were conspiring to induce every other member to withdraw his labour in breach of his contract of employment with the BOAC in order to bring pressure on the employers to further the trade dispute and that, clearly, if the threats had been carried out, would be protected by the first part of section 3 of the Act of 1906 if BOAC had sued in respect of it. The threat only of either Bamard or Fistal (or even both, I would add) to cease their employment with BOAC might have had no effect at all. BOAC might have welcomed that termination of the trouble and it is at least doubtful whether there would have been, or if anyone could have foreseen as likely, any dismissal of or damage to the plaintiff by one or two such isolated threats. A mere threat to break a contract would not necessarily have any effect on a contract and so would not necessarily give any right at law to a contracting party. It would be nugatory unless it amounted to a repudiation of the contract ... Even if it did, it would have no immediate effect on the bargain between the parties. This would continue unless or until the repudiation was accepted as a termination of the contract by the other party who was entitled to its performance. If a man seeks to have his contract enforced on what he considers to be its terms express and implied, and so seeks to adhere to it, it is not easy to hold that he is thereby repudiating it, that he is in breach of it, although if his attitude was wholly erroneous and unjustified it might provide evidence strong enough to justify such a finding. In the present case the plaintiff could not, in my opinion, establish a cause of action against anyone of the defendants without conspiracy and the only unlawful act relied on is against BOAC. If the real purpose of the combination is not to injure another but to forward or defend the trade of those who enter it, then no wrong is committed and no action will lie, although damage is caused to another person provided that the purpose is not effected by illegal means. Whatever dicta may be quoted ... in support of the plaintiff's argument, there is a greater and I think more convincing selection to be made restricting intimidation to acts of violence or threats or fraud of a tortious or criminal character.

Lord Donovan said: There is no decision binding this court which directly supports the plaintiff's proposition. On the other hand the [trade union] statutes of 1871 and 1875 ... do give

Rookes v. Barnard 85 support to the view that 'unlawful means' in this context connotes means which are either criminal or tortious. There are, however, wider considerations which should also be taken into account. There can be few strikes which do not involve a breach of contract by the strikers. Until a proper notice is given to terminate their contract of service, and the notice has expired, they remain liable under its terms to perform their bargain. It would, however, be affectation not to recognise that in the majority of strikes, n~ such notice to terminate the contract is either given or expected. The strikers do not want to give up their job; they simply want to be paid more for it or to secure some other advantage in connection with it. The employer does not want to lose his labour force; he simply wants to resist the claim. Not till the strike has lasted some time, and no settlement is in sight, does one usually read that the employers have given notice that unless the men return to work their contracts will be terminated, and they will be dismissed. If a threat to break one's own contract of service be 'unlawful' the actual breach of it must surely be 'unlawful' too. Yet no one seems yet to have thought that a strike itself in breach of contract is unlawful, and at this time of day I do not think it is. Otherwise there would have been countless actions against strikers before now, on the ground that they had conspired to secure their ends by unlawful means; and that on this hypothesis the provisions of sections 1 and 3 of the Trade Disputes Act, 1906, were of no avail. If that be the true position, as I think it is, then the situation is reached, if the plaintiff be right, that a strike is not unlawful, but the threat to do so is. In other words, the policy which workmen should pursue in order to avoid liability is to strike first and negotiate afterwards. One has the further anomaly that while the breach of the contract of service would give the present plaintiff no right to sue, since he was not a party to the contract, the mere threat to do so has. If the present judgment stands it is clear that the protection hitherto thought to be afforded by sections 1 and 3 of the Trade Disputes Act, 1906, is largely illusory. In almost all trade disputes there is a prior threat of a strike: and if strikes of themselves involve a breach of contract - as I think many of them must - then the threat will constitute the employment of unlawful means, thus taking away the protection of the Act. If this be so, I find it astonishing that in England at any rate no one seems to have thought of the point before. I reach the conclusion that no unlawful means were employed by Barnard and Fistal; because 'unlawful' in the context of this kind of case means in my view unlawful as being criminal or tortious; and the threat to break their own contract of service by the first and third defendants was neither. With regard to Silverthome, who could not threaten to break his own contract since he did not possess one, I think that the notion that the threats by Bamard and Fistal to break their contracts become threats in which Silverthome joined pursuant to the alleged conspiracy is somewhat unreal. But if it be the true view, then what I have said concerning Bamard and Fistal covers Silverthome too. I think the true ~onclusion from the evidence is that Silverthome threatened to procure a breach of contract by the members of the unions; as this was done in pursuance of a trade dispute, section 3 of the Act of 1906 precludes an action against him. If I am wrong in thinking that Barnard and Fistal employed no unlawful means, then in my opinion the second limb of section 3 provides them with a defence. They clearly interfered with the plaintiff's employment, but in furtherance of a trade dispute.

Lord Justice Pearson also held that it would not be right to extend the tort of intimidation to cover a case in which there was only a threat to break a contract and the appeal was allowed.

.

86 Famous Cases

In other words, according to the Court of Appeal, Rookes had no cause of action at common law, and even if he had the defendants would have been protected by the 1906 Act. The House of Lords 3 Rookes then appealed to the House of Lords who allowed his appeal. Their grounds were: (a)

(b)

(c)

that there is a common law tort of intimidation by a threat to a person other than the plaintiff to do an unlawful act, made with the intention of causing harm to the plaintiff, whereby loss accrues to him; for the purposes of constituting the tort there is no distinction between a threat to do a tortious act to, and a threat to break a contract with, the person threatened; section 1 Trade Disputes Act, 1906, did not defeat the plaintiff's right of action since it was not intended to give protection to the use of unlawful means such as the tort of intimidation.

Similarly, on the true construction of section 3 it did not protect the use of tortious means where there were threats to break contracts and the tort of intimidation was established. As to the amount of damages awarded to Rookes the case was adjourned for a re-hearing and was subsequently settled for £4,000 plus costs. Lord Reid in his judgment said: This case raises the question whether it is a tort to conspire to threaten an employer that his men will break their contracts with him unless he dismisses the plaintiff, with the result that he is thereby induced to dismiss the plaintiff and cause him loss. The magnitude of the sum awarded by the jury shows that the appellant had every prospect of retaining his employment with BOAC if the respondents and the other conspirators had not interfered. Leaving the Trade Disputes Act 1906 out of account, if BOAC had been induced to dismiss the appellant in breach of their contract with him then there is no doubt that the respondents would have committed a tort and would have been liable in damages (Lumley v. Gye).4 Equally, there is no doubt that men are entitled to threaten to strike if that involves no breach of their contracts with their employer, and they are not trying to induce their employer to break any contract with the plaintiff. The question in this case is whether it was unlawfulfor them to use a threat to break their contracts with their employer as a weapon to make him do something which he was legally entitled to do but which they knew would cause loss to the appellant. The first contention of the respondents is very far reaching. They say there is no such tort as intimidation. That would mean that, short of committing a crime, an individual could with impunity virtually compel a third person to do something damaging to the plaintiff which he does not want to do but can lawfully do. The wrongdoer could use every kind of threat to commit violence, libel or any other tort, and the plaintiff would have no remedy. And a combination of individuals could do the same, at least if they acted solely to promote their own interests. It is true that there is no decision of this House which negatives that argument. But there are many speeches in this House and judgments of eminent judges where it is assumed that that is not the law and I have

3 4

HL [1964] AC 1129; 2 WLR269. [1853] QB. 2 E. & B. 216.

Rookes v. Barnard 87 found none where there is any real support for this argument. Most of the relevant authorities have been collected by Pearson LJ and I see no need to add to them. It has often been stated that if people combine to do acts which they know will cause loss to the plaintiff, he can sue if either the object of the conspiracy is unlawful or they use unlawful means to achieve it. In my judgment, to cause such a loss by threat to commit a tort against a third person if he does not comply with their demands is to use unlawful means to achieve their object. That brings me to the second argument for the respondents, which raises a more difficult question. They say that there is a distinction between threats to commit a tort and threats to break a contract. They point out that a person is quite entitled to threaten to do something which he has a legal right to do and they say that breach of contract is a private matter between the contracting parties. If the plaintiff cannot sue for loss to him which results from an actual breach of a contract to which he is not a party, why, they ask, should he be entitled to sue for loss which results from a threat to break a contract to which he is not a party? A somewhat similar argument failed in Lumley v. Gye. The defendant had induced a singer to break her contract with the plaintiff and he knew that this would cause loss to the plaintiff. The plaintiff had his action against the singer for breach of contract and he was held also to have a cause of action against the defen~ant for the tort of unjustifiably interfering so as to cause him loss. The fact that the direct cause of the loss was a breach of a contract to which the defendant was not a party did not matter. So, too, the plaintiff's action in the present case does not sound in contract; in fact there was no breach of contract because BOAC gave in. The appellant in this case could not take a benefit from contracts to which he was not a party or from any breach of them. But his ground of action is quite different. The respondents here used a weapon in a way which they knew would cause him loss, and the question is whether they were entitled to use that weapon - a threat that they would cause loss to BOAC if BOAC did not do as they wished. That threat was to cause loss to BOAC by doing something which they had no right to do, breaking their contracts with BOAC. I can see no difference in principle between a threat to break a contract and a threat to commit a tort. If a third party could not sue for damage caused to him by the former I can see no reason why he should be entitled to sue for damage caused to him by the latter. A person is no more entitled to sue in respect of loss which he suffers by reason of a tort committed against someone else than he is entitled to sue in respect of loss which he suffers by reason of breach of contract to which he is not a party ... But Rookes was about whether a plaintiff who was a third party to a contract could sue after someone else threatened to break the contract. Lumley v Gye dealt with whether a third party defendant could be liable for interfering with other people's contracts by securing a breach.

Lord Reid continued: What he sues for in each case is loss caused to him by use of an unlawful weapon against him - intimidation of another person by unlawful means. So long as the defendant only threatens to do what he has a legal right to do he is on safe ground. At least if there is no conspiracy he would not be liable to anyone for doing the act, whatever his motive might be, and it would be absurd to make him liable for threatening to do it but not for doing it. But I agree with Lord Herschell (Allen v Flood)5 that there is a chasm between doing what you have a legal right to do and doing what you have no legal right to do, and there

5

[1898] HL. AC. 1; 67.

88 Famous Cases seems to me to be the same chasm between threatening to do what you have a legal right to do and threatening to do what you have no legal right to do.

This is what Lord Pearson in the Court of Appeal had described as a "rare and peculiar tort of civil intimidation". However, for Lord Reid: It must follow from Allen v. Flood that to intimidate by threatening to do what you have a legal right to do is to intimidate by lawful means. But I see no good reason for extending that doctrine. Threatening a breach of contract may be a much more coercive weapon than threatening a tort, particularly when the threat is directed against a company or corporation, and, if there is no technical reason requiring a distinction between different kinds of threats, I can see no other ground for making any such distinction. I have not set out any of the passages cited in argument because the precise point which we have to decide did not arise in any of the cases in which they occur, and it does not appear that any of the authors of these passages had this point in mind. Sometimes the language seems to point one way and sometimes another and it would, I think, be wrong in such circumstances to use a judge's language as authority for a proposition which he did not have in mind. The Court of Appeal in this case were unwilling to go beyond existing authorities. Sellers LJ. said: 'Unless authority requires it, I would resist enlarging the tort of intimidation in the manner sought before and accepted by the judge,' and Pearson LJ. said: 'Should this obscure, unfamiliar and peculiar cause of action, which has its roots in cases of physical violence and threats of violence, be extended to cover a case in which there is only a threat to break a contract?' I am afraid I take a different view. Intimidation of any kind appears to me to be highly objectionable. The law was not slow to prevent it when violence and threats of violence were the most effective means. Now that subtler means are at least equally effective I see no reason why the law should have to turn' a blind eye to them. We have to tolerate intimidation by means which have been held to be lawful but there I would stop. Accordingly, I would hold that on the facts found by the jury the respondents' actions in this case were tortious... It is now necessary to consider whether the respondents are absolved from liability by any of the provisions of the Trade Disputes Act, 1906. The only difficulty about section 1 is to discover what is meant by 'unless the act, if done without any such agreement or combination, would be actionable.' In the present case, and I have no doubt in many others, the precise act complained of could not have been done without previous agreement. The act complained of in this case was presenting to BOAC a resolution of all the members of the union to which the respondents were parties. The section cannot reasonably be held to mean that no action can be brought unless the precise act complained of could have been done by an individual without previous agreement or combination.

But that is precisely what the section requires. It was to protect strike action from liability for conspiracy unless the act done would be actionable against an individual. Yet, continued the judge, In my view, the section requires us to find the nearest equivalent act which could have been so done and see whether it would be actionable. In the present case I think we must suppose that if one of the respondents had said to BOAC 'I am acting alone but I think I can, and I intend to, induce the men to break their contracts and strike if you do not get rid of Mr Rookes.' If the opinion which I have already expressed is right, that would have been actionable if BOAC had succumbed to that threat and got rid of the appellant in the way they did. So section 1 does not help the respondents.

Rookes v. Barnard 89

In this respect Lord Reid was taking a narrow view of the section and saying that it merely protected conspiracies where the defendants were not primarily pursuing legitimate trade union purposes but vindictively endeavouring to injure the plaintiff. He continued: Section 3 deals with two classes of acts done by individuals, and by virtue of section 1, the immunity given by section 3 to individuals must also extend to combinations or conspiracies. The classes of ac~s permitted (if done in contemplation or furtherance of a trade dispute) are, (1) inducing a breach of a contract of employment and, (2) interfering with a person's trade, business or employment or right to dispose of his capital or labour as he wills. The facts in this case fall within the second class. In 1906 Parliament had to consider (i) inducement accompanied by violence or threats, (ii) inducement involving a breach of contract, and (Hi) mere inducement alone. Section 3 is silent as to (i), so one might think that it leaves the existing liability unaltered. It deals with (ii) and (iii). I have stated my opinion as to how it .deals with (ii); it confers immunity, provided that there is no further element of illegality, such as intimidation. The question is how it deals with (iii). Does it there go farther and confer immunity even where there is intimidation? The general plan of the section appears to be to treat (H) and (Hi) in precisely the same way, and it would seem a strange result if the liability of the present defendants depended on the method which BOAC adopted in acceding to their demands that the appellant should be removed from the design office within a few days. If they had summarily dismissed him the case would have fallen under head (ii), and the defendants would have been liable. But can it be said that the fact that BOAC chose only to suspend him and then give him notice, which puts the case within head (iii), makes all the difference and saves the respondents from any liability to him? That may be the necessary result of the way in which the section is drafted, but it could hardly have been the intention of Parliament. In my judgment, it is clear that section 3 does not protect inducement of breach of contract where that is brought about by intimidation or other illegal means and the section must be given a similar construction with regard to interference with trade business or employment. So, in my opinion, the section does not apply to this case because the interference here was brought about by unlawful intimidation. I would therefore allow this appeal.

After that, the question is, "What kind of wrongdoing does section 3(2) protect?" As there appears to be none that is why, in the Court of Appeal, Lord Donovan asked, "Why bother to enact it?" He, at least, considered it odd that Parliament has allowed a person to "procure the breach of another's contract with impunity but cannot even threaten to break one's own."6 Lord Evershed considered the case to be an "important and difficult" one but accepted that there had been established as a wrong and as part of the English law the tort of intimidation. I am willing, he said, to concede that the tort is one of relatively modem judicial creation and that its full intent and scope have not (at least before the present case) been authoritatively determined and may well, indeed, even by your lordships' judgments in this case, still not have been finally stated. But that is, after all, in accordance with the well-known principles of our law, on of the characteristics of which is (as has been pointed out by many eminent legal scholars, including Cardoza C.}.), that its principles

6

[1963] QB 685. (CA).

90 Famous Cases

are never finally determined, but are and should be capable of expansion and development as changing circumstances require, the material subject matter being 'tested and re-tested' in the law's laboratories, namely, the courts of justice. So far I have agreed with the Court of Appeal; but I respectfully differ from the Court of Appeal in thinking that the wrong of intimidation must stop short so as to comprehend only threats of criminal or tortious acts, and thus to exclude threats of breaches of contract. I feel therefore free to approach the question as a matter of principle; and so approaching it, I cannot for my part see any persuasive basis for drawing the line so as to exclude from the wrong of intimidation threats of breaches of contract. I cannot find in accordance with logic, reason or common sense anything between threats to do tortious or criminal acts, on the one hand, and threats to break contracts on the other, which amounts to a chasm.

With regard to section 3 of the Trade Disputes Act, 1906, Lord Evershed said he would not formally dissent from the majority view that in the present case it did not give the respondents immunity. Nonetheless, he said, I have not felt able to resolve the doubts which I have felt in favour of your lordships' views and in case the section should hereafter come before Parliament for review I have thought it right to express more fully the argument which has appealed to me in favour of the alternative view of the construction of section 3, namely that the acts of the respondents of which the appellant complains are actionable at his suit because (and only because) they have constituted and resulted (as they were intended to do) in an interference with the appellant's employment by BOAC ... the vital word may be said to be 'actionable' and not, for example, 'wrongful' or 'capable of giving rise to a cause of action'. The use of the word 'actionable' inevitably provokes the question 'actionable on whose part?'; and the alternative answer to the question involves only that there should be read into the section such words as 'on the part of any person' which the use of the word 'actionable' may be said inevitably to require. Nonetheless, having attempted to express my doubts and the reasons for them I do not on this matter formally dissent from your lordships.

Lords Hodson, Devlin, Pearce gave judgments and agreed that the appeal should be allowed. In brief, breaking new ground, the decision meant that to threaten to break a contract was an unlawful tortious act and that the combined threats of the defendants constituted the tort of conspiracy. It also meant that section 1 of the Trade Disputes Act, 1906 did not help them because the Lords determined that it protected only conspiracies which employed lawful means to cause loss to the plaintiff and section 3 of that act was also of no help because the defendants not only interfered with the plaintiff's employment but did so in a tortious manner. In so deciding many thought that the House of Lords had engaged in decisionmaking that overrode the purpose of the Act. The decision caused an immense outcry, not least from trade unions. It was a landmark case in that it was followed in a number of subsequent cases and it led to the enactment of the Trade Union and Trade Relations Act, 1974 in order to mitigate its effects. Section 13(1)(b) of this Act provided that "an act done by a person in contemplation or furtherance of trade dispute shall not be actionable in tort on the ground only that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken, or its performance interfered with or that he will

Rookes v. Barnard 91

induce another person to break a contract or to interfere with its performance.'f The Act also granted immunity from liability to trade unionists contemplating or taking part in a trade dispute who were previously liable under a number of earlier cases, some of which had been law for many years. Nevertheless, the principle of Rookes v. Barnard continues in that a threat to break a contract remains a tort where no trade dispute is contemplated or furthered. 7

7

[1973] Cory Lighterage, Ltd.

'V.

TGWU. 2 All ER. 558, CA.

CHAPTER 8

The Mareva Injunction] Until this case, which gave rise to the course of action known by the title of this chapter, it was possible for an organization against whom a claim had been made to remove all of its assets to another country where they could not be reached. This was not the case elsewhere in the world: in most countries a creditor could impound the property of the debtor so that it could be retained as security if the creditor obtained judgment. But in England it was possible for debtors to engage in delaying tactics whilst removing assets either by transferring them to a third party or transferring them to another country. This case demonstrated an instance of law reform where the common law was effectively reversed enabling that which hitherto had not been done, because everyone believed that it could not be done, to be done. Moreover, it followed a recent earlier case where the course of action was initially said to be not possible but where the appeal court said it was. Before discussing the Mareva case this earlier case must be briefly examined.

Nippon Yusen Kaisha v Karageorgis 2 The facts of this case were that two Greek men hired a ship from Japanese shipowners as charterparties. They failed to pay their hire charge, closed their office in Piraeus and disappeared. However, they had funds in a London bank and the Japanese shipowners were afraid that these funds might be transferred to a country such as Switzerland where they could not be reached. Solicitors for the Japanese issued a writ for service outside the jurisdiction and before the writ was served applied to the court in London for an injunction to prevent the funds from being removed elsewhere. The judge, Mr Justice Donaldson, refused to grant it on the grounds that such an injunction was unknown in English law. The Japanese appealed and the appeal court immediately granted it. On 22 May 1975 Lord Denning MR said: We are told that an injunction of this kind has never been granted before. It has never been the practice of the English courts to seize assets of a defendant in advance of judgment or·to restrain the disposal of them. We were told that Mr Justice Chapman in chambers recently refused such an application. In this case also Mr Justice Donaldson refused it. We know, of course, that the practice on the continent of Europe is different. It seems to me that the time has come when we should revise our practice. There is no reason why the high court or this court should not make an order such as is asked for here. It is warranted by section 45 of the Supreme Court of Judicature (Consolidation) Act 1925 which says that the high court may grant a mandamus or injunction or appoint a receiver by an interlocutory order in all cases in which it appears to the court to be just or convenient to do so. It seems to me that this is just such a case. There is a strong prima facie case that the hire is owing and unpaid. If an injunction is not granted, these moneys may be removed out of the jurisdiction and 1 2

From April 1999 known properly as the "Freezing Injunction". [1975] 1 WLR 1093.

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the shipowners will have the greatest difficulty in recovering anything. Two days ago we granted an injunction ex parte and we should continue it. It seems to me plain that the injunction should be continued on this ex parte application and should be continued until after judgment in these proceedings, to restrain the defendants from disposing of their assets here. On notice being given, the banks, of course, will not part with the money. If the defendants wish to challenge this order, they can, of course, apply to discharge it, if they have grounds for doing so.

Lord Justice Browne agreed, as did Lord Justice Geoffrey Lane who said: In the circumstances which exist in this case there is no reason why the court should not assist a litigant who is in danger of losing money to which he is admittedly entitled ... The circumstances demand that the injunction should be continued.

Four weeks later in the Court of Appeal, Civil Division, Lord Denning was again in action, sitting with Lords Justice Roskill and Ormrod on the Mareva case.

Mareva Compania Naviera SA v International Bulkcarriers SA 3 Lord Denning began his judgment by pointing out that the case raised an important point of principle and referred to the case of Nippon Yusen Kaisha v Karageorgis. He then outlined the facts of the case in his characteristic style: The plaintiffs are shipowners who owned the vessel Mareva. They let it to the defendants ('the charterers') on a time charter for a trip out to the Far East and back. The vessel was to be put at. the disposal of the charterers at Rotterdam. Hire was payable half monthly in advance and the rate was $US3,850 a day from the time of delivery. The vessel was duly delivered to the charterers on 12 May 1975. The charterers sub-chartered it. They let it on a voyage charter to the President of India. Freight was payable under that voyage charter: 90% was to be paid against the documents and the 10% later. Under that voyage charter the vessel was loaded at Bordeaux on 29 May 1975 with a cargo of fertiliser consigned to India. The Indian High Commission, in accordance with the obligations under the voyage charter, paid 900/0 of the freight to the Bank of Bilbao in London to the credit of the charterers. The total sum which the Indian High Commission paid into the bank was £174,000. Out of that the charterers paid to the shipowners, the plaintiffs, the first two instalments of the half monthly hire.

At this point it is worth looking at the arithmetic of the arrangement. The charterers hired the ship at a daily fee of $3,850 and sub-hired it at a flat fee for a voyage. As 90% of the fee amounted to £174,000, so the total fee was about £193,000. Having received the £174,000 from the Indian government the charterers paid up the first two half monthly instalments; at thirty days, this would amount to $115,000 which at the then rate of exchange of approximately $2.40 to the pound amounted to £48,125. They thus had, at that point, roughly £125,000 in hand. To continue with Lord Denning's judgment: They paid those instalments by credit transferred to the shipowners. The third [instalment] was due on 12 June 1975, but the charterers failed to pay it. They could 3

[1975] 1 All ER 213.

94 Famous Cases

easily have done it, of course, by making a credit transfer in favour of the shipowners. But they did not do it. Telexes passed which make it quite plain that the charterers were unable to pay. They said they were not able to fulfil any part of their obligations under the charter, and they had no alternative but to stop trading. Their efforts to obtain further financial support had been fruitless Whereupon the shipowners treated the charterers' conduct as a repudiation of the charter. They issued a writ on 20 June. They claimed the unpaid hire, which comes to $U530,800, and damages for the repudiation. The total will be very large. They have served the writ on agents here, and they have applied also for service out of the jurisdiction. But meanwhile they believe there is a grave danger that these moneys in the bank in London will disappear. So they have applied for an injunction to restrain the disposal of those moneys which are now in the bank. They rely on the recent case of Nippon Yusen Kaisha v Karageorgis. Mr Justice Donaldson felt some doubt about that decision because we were not referred to Lister & Co v Stubbs 4• There are observations in that case to the effect that the court has no jurisdiction to protect a creditor before he gets judgment.

In the case just cited Lord Justice Cotton had said he knew of no case where it was probable that if the action was brought to a hearing the plaintiff could establish that a debt was due to him from the defendant, the defendant had been ordered to give security until that has been established by the judgment or decree." And in the same judgment Lord Justice Lindley said that to do what was being asked would be a very great mischief". 11

11

Donaldson J, said Denning, felt he was bound by Lister & Co v Stubbs and that he had no power to grant an injunction. But in deference to the recent (Mareva) case, he (Donaldson J.) did grant an injunction, but only until 1700 hours today (23 June 1975), on the understanding that by that time this court would be able to reconsider the position.

Donaldson, in fact, was in rather a cleft stick. On the one hand he felt bound by the 19th century case which was clearly the authority but on the other he was faced with the decision in Nippon only a few weeks earlier in which his refusal of an injunction was overturned. He resolved his dilemma by making a short and inadequate injunction whose ultimate fate would be left to the appeal court. Denning continued: ...Counsel for the charterers ... has drawn our attention ... also to s.45 of the Supreme Court of Judicature (Consolidation) Act 1925, which repeats s 25(8) of the Judicature Act 1873. It says: 'A mandamus or an injunction may be granted or a receiver appointed by an interlocutory Order of the Court in all cases which shall appear to the Court to be just or convenient ...' In Beddow v. Beddow5 Jessel MR gave a very wide interpretation to that section. He said: 'I have, unlimited power to grant an injunction in any case where it would be right or just to do so ...' 4 5

(1890) 45 Ch D 1 (1886-90) All ER Rep 797. (1878) 9 Ch D 89.

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That being the case one might wonder why Lords Justices Cotton and Lindley came to the opposite view twelve years later. However: ... There is only one qualification to be made. The court will not grant an injunction to protect a person who has no legal or equitable right whatever. That appears from North London Railway Co v Great Northern Railway C06. But, subject to that qualification, the statute gives a wide general power to the courts. It is well summarised in Halsbury's Laws afEngland: '... now, therefore, whenever a right, which can be asserted either at law or in equity, does exist, then, whatever the previous practice may have been, the Court is enabled because of this provision, in a proper case, to grant an injunction to protect that right'. In my opinion that principle applies to a creditor who has a right to be paid the debt owing to him, even before he has established his right by getting judgment for it. If it appears that the debt is due and owing, and there is a danger that the debtor may dispose of his assets so as to defeat it before judgment, the court has jurisdiction in a proper case to grant an interlocutory judgment so as to prevent him disposing of his assets. It seems to me that this is a proper case for the exercise of this jurisdiction. There is money in a bank in London which stands in the name of these charterers. The charterers have control of it. They may at any time dispose of it or remove it out of this country. If they do so the shipowners will never get their charter hire. The ship is now on the high seas. It has passed Cape Town on its way to India. It will complete the voyage and the cargo will be discharged. And the shipowners may not get their charter hire at all. In face of this danger, I think this court ought to grant an injunction to restrain the charterers from disposing of these moneys now in the bank in London until the trial or judgment in this action. If the charterers have any grievance about it when they hear of it, they can apply to discharge it. But meanwhile the shipowners should be protected. It is only just and right that his court should grant an injunction. I would therefore continue the injunction.

Lord Justice Roskill agreed and pointed out that the application was made ex

parte. He said: ... the fact remains that we have heard argument from [only] one side and I do not think it would be right to express an opinion as to what the result would be were this matter hereafter to be argued fully.

He then identified two important points: the court's jurisdiction and the facts of the case. Of course the facts were clear but the court's jurisdiction was not. He tackled the latter point first. Donaldson J... has asked a number of other questions of this court which at present it would be wrong of us to seek to answer. If the charterers were represented, it would no doubt be said on their behalf that the decision of this court [that is, the Court of Appeal] in Lister & Co v Stubbs precludes this court, not as a matter of jurisdiction but as a matter of practice, from granting this injunction. Indeed it is right to say that ... an injunction in this form has in the past from time to time been applied for but has been consistently refused. This court should not, 6

(1883) 11 QBD 30.

96 Famous Cases therefore, on an ex parte interlocutory application be too ready to disturb the practice of the past save for good reasons.

Having pointed out that the judgment in Lister & Co v Stubbs had stood for almost a century Mr Justice Roskill then said it could be overturned if there were good reasons. On the facts of the case he found three good reasons for granting the injunction. First, the ship was on time charter from the plaintiffs to the defendants [at] a daily rate of .hire payable half-monthly in advance and only the first two half-monthly instalments have been paid; secondly, there have been what would seem to be a plain and unexcused default in the payment of the third half-monthly instalment, and indeed, a repudiation of the time charter by the charterers; thirdly, that third instalment fell due when the ship was under voyage charter from the time charterers to the President of India as voyage charterers. On the evidence the charterers have already received £174,000 from the voyage charterers. Yet they have sent a telex to the shipowners in London on 17 June stating that their efforts to raise further financial support have been fruitless and that they have no alternative but to stop trading.

If the court did not interfere, therefore, the charterers would be able to dissipate the £174,000 and the shipowners would get nothing. The way of avoiding this was clear: only Lister & Co v Stubbs stood in the way. It was necessary to find a reason for distinguishing that case from the present one. I would venture to suggest, the judge continued, that it is at least arguable that the court should interfere to protect the shipowners' rights which arise under clause 18 of the time charter. He noted that the relevant part read: 'That the owners shall have a lien on all cargoes, and all sub-freights for any amounts due under this Charter, including General Average contributions'. There is or may be a legal or perhaps equitable right under which the shipowners may be entitled to have protected by the court. The full extent and nature of that right has long been a controversial matter which may have to be resolved hereafter and I therefore say no more about it.

The justice of the cause was clear but the' grounds for overturning a longstanding practice were flimsy. As Lord Justice Ormrod said in his brief contribution, the charterers had a very strong case on the merits. But as the other side had not been heard he reserved his own views until the other side's argument was put forward but agreed that in the absence of such argument the injunction be continued. Lawrefonn Lord Denning later called this case the greatest piece of law reform in his time. It overturned a longstanding practice and gave a wide interpretation to the 1925 Act. Although the decision was popular the two cases could not be regarded as authority since the applications had been' made ex parte and only the creditors

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had been heard. Two years were to elapse before a similar case was argued by both sides. In March 1977 the case of Rasu v Perusahaan (~Pertamina')7 was heard. Rasu claimed damages of almost £2 million for breach of a charterparty but Pertamina was busy putting its assets out of reach. Assets in the form of a fertiliser plant were found in Liverpool and on an ex parte application Rasu were granted a Mareva injunction. Pertamina applied to have it discharged on the ground that it was wrong for judges to reform the law. Lord Denning this time was sitting with Lord Justice Orr. Referring to the two cases discussed above, he said that the facts with which the courts were presented called for intervention by the courts by injunction to restrain the debtor from removing his funds. It was a procedure so just and convenient that it had been constantly invoked since. However, in the case of Rasu v Pertamina each side accused the other and Denning was not inclined to intervene. The court declined to grant the injunction but made it clear that the new principle should be upheld. By finding effectively in favour of the defendants by not granting an injunction to the creditors any appeal to the House of Lords was avoided and with it the risk of the principle being overturned. Thus, the principle was established after full argument on both sides, an upset by the Lords was evaded and the judgment in Mareva became a binding authority.

7

[1978] QB 644.

CHAPTER 9

Wednesbury Unreasonableness After the second world war not only did war-time austerity continue for some years but many of the Victorian values that were current when the war began continued to be applied for a long time after. At that time there were many prohibitions concerning what could take place on a Sunday. No professional sporting events were staged on Sundays; professional football matches were restricted to Saturday afternoons and Sundays were always a day of rest for county cricket games. All shops, with very few exceptions, were closed on Sunday as were most places of entertainment which included theatres and cinemas. The latter were covered by section 1 of the Sunday Entertainments Act 1932, which enabled local authorities to grant permission to open cinemas on Sunday at their discretion. In 1947 a company called Associated Provincial Picture Houses, Ltd., which ran a number of cinemas, applied to be allowed to open their cinema in Wednesbury on Sundays. The Corporation of Wednesbury, close to Birmingham, agreed to allow the cinema to be open on Sundays, but with one condition: that no child under 15 years old was to be admitted, whether accompanied by an adult or not. The company, who now became the plaintiffs, not only objected to the condition, but claimed that a condition attached to a permission was ultra vires, that is, beyond the powers of the licensing authority, the Corporation. Their application was heard in the King's Bench division by Mr Justice Henn Collins. 1

Associated Provincial Picture Houses, Ltd v. WednesburyCorporation The judge began his judgment by outlining the essence of the complaint:

This is an action in which the plaintiffs, Associated Provincial Picture Houses, Ltd., seek a declaration against the mayor, aldermen and burgesses of the borough of Wednesbury to the effect that the limitation to a licence which the defendants granted in respect of performances in cinematograph theatres on Sunday within their area was beyond the powers of a local authority to impose, namely, that a child under the age of 15 years, whether accompanied by an adult or not, was to be excluded from Sunday performances.

Although moving pictures as entertainment had been available since the early years of the century, and the places where they were shown were widely and commonly known as "cinemas", "picture palaces" or "picture houses", the already antiquated words, "cinematograph theatres" were still used by the judge. He went on to consider the Act: The Act under which the local authority acted was the Sunday Entertainments Act 1932, s.l of which provides that the authority which has power in the area to grant cinematograph licences may, notwithstanding any enactment relating to Sunday observance, allow places in their area to be opened on Sundays for the purpose of 1

[1947] 1 All ER 498

Wednesbury Unreasonableness 99 cinematograph entertainments and these are the significant words: 'subject to such conditions as the authority think fit to impose'. The plaintiffs say that, in acting under that section, the local authority must act reasonably, and, subject to a proper understanding of that phrase, I think it is common ground that they must; but what is said is that the test of reasonableness is what the court thinks reasonable rather than what the local authority thinks reasonable. That is a strong contention and one which would require to be supported by clear words in the section because the words in themselves are without limitation.

Here the judge had put his finger on the problem. Everyone agreed that the authority must act reasonably but who is to decide what is reasonable? Two cases were cited: Theatre de Luxe (Halifax), Ltd v Gledhi1l2 and Harman v Bute, the former supporting the plaintiffs and the latter the defendants. Henn Collins came to the decision that there was not really a conflict between them: Theatre de Luxe (Halifax), Ltd v Gledhill was not a decision under the Act of 1932 ... but under the Cinematograph Act, 1909, and very different considerations, it seems to me, are to be applied to an Act which abridges personal rights from those which apply to one which tends to enlarge them. The approach is different. When an Act circumscribes private rights, this court ... is not astute to find that the abridgment is greater than necessity requires.

Before the 1909 Act was passed anyone could give a cinema show by whatever means he liked and the purpose of the Act was to make better provision for safety at performances and was not supposed to go beyond the purposes for which the Act was passed. Whenever the case of Theatre de Luxe was cited in relation to the 1909 Act it was: ... confined within its particular circumstances, and it has never been taken, as I see it, for a decision on the words which appeared in s.2(1) of the Act: /Ion such terms and conditions and under such restrictions as ... the council may by the respective licences determine," or any similar words, wherever they appear and it whatever correlation. In Harman v Butt Atkinson J had to consider, not an Act abridging the rights of the subject, but one which did exactly the opposite thing. Up to the passing of that Act it was unlawful to hold a cinematograph exhibition on a Sunday. The Act enabled performances to be given on Sunday, which was an enlargement of the public right, and the same considerations did not obtain in that case as had obtained in the earlier case, and the difference of approach may account for the difference between the two decisions. I think that that is the explanation. Atkinson J felt himself in no difficulty in deciding under the Act of 1932 that it was not ultra vires the authority to impose a condition that no child under the age of 16 years should be admitted, that is to say, it was not beyond their powers to take into consideration matters which did not directly affect the premises or the nature of the performance, but which were designed to effect a benefit to a section of the community. Faced with two apparently conflicting authorities and accepting that he was not untrammelled by authority, the judge has to choose. Other things being equal, I would naturally accept as right, and binding on me in that sense, the decision under the Act of 1932 of Atkinson J, unless there is something in the Divisional Court decision to constrict me to the other view. I have given my 2

3

[1915] 2 K.B. 49 [1944] 1 All ER 558

100 Famous Cases reasons for thinking that the earlier decision is not really in pari materia with that which I have to decide today, and without any hesitation, therefore, I follow the decision in Harman v Butt, I hold that this limitation is not outside the powers of the defendant local authority, Wednesbury Corporation, and I decline to make the declaration which the plaintiffs seek. Consequently, the action is dismissed, with costs.

In other words, the judge had decided that the corporation had acted reasonably in that they could take into consideration matters that they considered of benefit to the community even though such matters did not affect the premises where the performances took place. The company appealed, and the appeal was heard some nine months later in the Court of Appeal before the Master of the Rolls, Lord Greene, Lord Justice Somervell and Mr Justice Singleton. The appea14 The judgment was delivered by Lord Gr.eene with the other two judges agreeing. At the outset the master of the rolls stated that the condition imposed by Wednesbury Corporation was not ultra vires and that the decision of Mr Justice Henn Collins to dismiss the action was right. He then outlined the essence of the 1932 Act. The powers and duties of the local authority are to be found in the Sunday Entertainments Act, 1932. That Act legalised the opening of cinemas on Sundays, subject to certain specified conditions and such conditions as the licensing authority think fit to impose. The licensing authority is that set up under the Cinematograph Act, 1909. In this case it is Wednesbury Corporation. Before the Act of 1932 the opening of cinematograph theatres on Sundays was illegal.

Lord Greene then quoted the reasons for granting permission to open a cinema on Sundays given by Mr Justice Atkinson in Harman v Butt which impressed Henn Collins but whom that judge did not quote. Atkinson had said: 'It is apparent that there are at least three different occasions on which licensing justices may be called on to exercise their discretion to issue a licence and to determine on what conditions that licence shall be issued. The application may be under the Cinematograph Act, 1909, relating to six days of the week, excluding Sundays. It may be one relating solely to Sundays under the Sunday Entertainments Act, 1932, where in the case of a borough the majority of the local government electors have expressed a desire for Sunday performances. Thirdly, it may be one where the local government electors have expressed no such wish, but where the application is made for the benefit of those members of the forces who are stationed in the neighbourhood for the time being.'

During the war, under a Defence Regulation, the commanding officer of forces stationed in the neighbourhood had power to make a representation to the licensing authority, and in Harman v Butt that had taken place. This, of course, accounts for the fact that in that case a condition was imposed that children under 16 years should be excluded: permission was granted primarily for

4

[1947] 2 All ER 680, [1948] 1 KB 225.

Wednesbury Unreasonableness 101

soldiers stationed in the vicinity. Judge Atkinson had believed that to be a reasonable condition: The words in question in the present case are to be found in section 1 of the Act of 1932, which provides: '(I) The authority having power, in any area to which this section extends, to grant licences under the Cinematograph Act, 1909, may, notwithstanding anything in any enactment relating to Sunday observance, allow places that are licensed under the said Act to be opened and used on Sundays for the purpose of cinematograph entertainments, subject to such conditions as the authority think fit to impose...' That power to impose conditions is expressed in quite general terms, and in the present case the defendants imposed the following condition in their licence: 'No children under the age of 15 years shall be admitted to any entertainment, whether accompanied by an adult or not.'

It is clear from section 1(1) above that the authority may impose any condition they think fit. What was being suggested by the plaintiffs was that the authority must have a reason for imposing the condition and could not do so on whim. In other words, any conditions imposed must be reasonable. Counsel for the plaintiffs argued, said Lord Greene, ... that it was not competent to the Wednesbury Corporation to impose any such condition, and he said that, if they were entitled to impose a condition prohibiting the admission of children, they should have limited it to cases where the children were not accompanied by their parents or a guardian or some adult. His argument was that the imposition of that condition was unreasonable, and that, in consequence, it was ultra vires the corporation.

Lord Greene then gave his opinion as to the reasoning behind the Act which showed that in all ordinary circumstances the discretion of the authority to impose conditions is virtually limitless. The courts must always remember, first, that the Act deals, not with a judicial act, but with an executive act; secondly, that the conditions which, under the exercise of that executive act, may be imposed are in terms within the discretion of the local authority without limitation; and thirdly, that the statute provides no appeal from the decision of the local authority. What, then is the power of the courts? The courts can only interfere with the power of an executive authority if it be shown that the authority have contravened the law. On the face of it, a condition of this kind is perfectly lawful. It is not to be presumed prima facie that responsible bodies like local authorities will exceed their powers, and the court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for the local authority... it must always be remembered that the court is not a court of appeal. The law recognises certain principles on which the discretion must be exercised, but within the four corners of those principles the discretion is an absolute one and cannot be questioned in any court of law.

102 Famous Cases

The principles were clear enough. The authority must have regard to those matters that they should take into consideration in the exercise of their discretion, and must disregard those matters that were not germane to the matter in question. Bad faith, dishonesty, unreasonableness, attention given to extraneous circumstances, disregard of public policy were things which could give rise to interference by the courts. Lord Greene then got to the heart of his analysis: In the present case we have heard a great deal about the meaning of the word 'unreasonable'. It is true that discretion must be exercised reasonably. What does that mean? ... It is frequently used as a general discretion of the things that must not be done. For instance, a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters he is bound to consider. He must exclude from his consideration matters which are irrelevant to the matters he has to consider. If he does not obey these rules, he may truly be said, and often is said, to be acting "unreasonably". Similarly, you may have something so absurd that no reasonable person could ever dream that it lay within the powers of the authority.

Three examples of unreasonableness have now been given: not doing those things that should be done, doing those things that should not be done and, the more objective test, doing something so absurd that no sensible person would consider doing. Of the last example, he offered the hypothetical instance given by Lord Justice Warrington of the red-haired teacher who was dismissed because she had red hair. Returning to the present case, he continued: ... it is said by counsel for the plaintiffs that the authority acted unreasonably in imposing the condition. In the first place, it appears to me clear that the matter dealt with by this consideration was one which a reasonable authority would be justified in considering when it was making up its mind what conditions should be attached to the grant of its permission. Nobody, at this time of day, can say that the well-being and the physical and moral health of children are not matters which a local authority, in exercising its powers, can properly have in mind when those questions are germane to what it has to consider. Counsel for the plaintiffs did not suggest that the authority were directing their minds to a purely extraneous and irrelevant matter, but he based his argument on the word 'unreasonable', which he treated as an independent ground for attacking the decision of the authority. It is just there, it seems to me that the whole argument entirely breaks down. It is perfectly clear that the local authority are entrusted by Parliament with the decision on a matter in which the knowledge and experience of the authority can best be trusted to be of value. The subject-matter with which the condition deals is one relevant for its consideration. It has considered it and come to a decision on it. Theoretically, it is true to say - and in practice it may operate in some cases - that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, .is right, but that would require overwhelming proof, and in this case the facts do not come anywhere near such a thing. Counsel in the end agreed that his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be proved to be unreasonable in the sense, not that it is what the court considers unreasonable, but that it is what the court considers is a decision that no reasonable body could have come to, which is a different thing altogether. The court may well have different views from those of a local authority on matters of high public policy

Wednesbury Unreasonableness

103

of this kind. Some courts might think that no children ought to be admitted on Sundays at all, some courts might think the reverse. All over the country, I have no doubt, on a thing of that sort honest and sincere people hold different views. The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authority who are put in that position and, provided they act, as they have acted here, within the four corners of their jurisdiction, the court, in my opinion, cannot interfere.

Although Lord Greene said that the case did not require references to authority he did comment on those that had been cited. He considered that Harman v Butt could be distinguished only because in that case representation had been made by a commanding officer of forces stationed in the area. He was entirely in agreement with Mr Justice Atkinson when he said: ' ... I am satisfied that the defendants were entitled to consider matters relating to the welfare, including the spiritual well-being, of the community and of any section of it, and I hold that this condition that no child under sixteen should be admitted to this cinematograph theatre on Sunday is not ultra vires on the ground that it is not confined to the user of the premises by the licencee, but relates to the interest of a section of the community.'

Other cases he discounted as dissimilar and he disapproved of the decision in Theatre de Luxe (Halifax), Ltd v. Gledhill but favoured Mr Justice Atkin's dissenting judgment ... in which he expressed the opinion that the power to impose conditions was nothing like so restricted as the majority had thought. ...His opinion was: ' ... that the conditions must be (1) reasonable; (2) in respect of the use of the licensed premises; (3) in the public interest. Subject to that restriction there is no fetter upon the power of the licensing authority.' ... I think that Atkin, J., was right in considering that the restrictions on the power of imposing conditions were nothing like so broad as the majority thought, but I am not sure that his language might not be read in rather a different sense from that which I think he must have intended. I do not find in any of the language that he used any justification for thinking that it is for the court to decide the question of reasonableness rather than the local authority. I do not read him as in any way dissenting from the view which I have ventured to express, that the task of the court is not to decide what it thinks is reasonable, but to decide whether the condition imposed by the local authority is one which no reasonable authority, acting within the four corners of their jurisdiction, could have decided to impose. Similarly, when he refers to public interest, I do not read him as saying more than that the public interest is a proper and legitimate thing which the licensing authority ought to have in mind. He certainly does not suggest that the court is entitled to set up its own view of the public interest against the view of the local authority.

Dismissing the appeal he finally summarised the principle, which ... seems to me to be that the court is entitled to investigate the action of the local authority with a view to seeing whether it has taken into account matters which it

104 Famous Cases ought not to take into account, or, conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that no reasonable authority can ever come to it. In such a case, I think, the court can interfere. The power of the court in such a case is not that of an appellate authority to override a decision of the local authority, but is that of a judicial authority which is concerned, and is concerned only, to see whether the local authority have contravened the law by acting in excess of their powers which Parliament has confided in it.

What the case settled This case settled two things. First, it determined that a local authority, and by extension any public body, could impose any conditions it pleased provided they did not act in an unlawful manner by exceeding the powers given them by Parliament. They should not take into account those matters that should not be taken into account and should not neglect to consider matters that are germane to their decision. Only if they acted unlawfully could the courts then intervene, not to alter the decision of the local authority because the court disagreed with it but only to force it to act lawfully. Provided they had acted lawfully they must also act reasonably. On this second point the case also determined, and seems to have determined once and for all, the meaning of the term "reasonable", and, more importantly, the term "unreasonable". To act unreasonably is to come to a conclusion that no reasonable authority, be it local authority, judicial tribunal or individual, could ever come to. The term "Wednesbury unreasonable" has entered the legal vocabulary as shorthand for the above definition. It is a pity that this unremarkable midlands town should be linked with the. word "unreasonable" when its corporation had demonstrated to the Court of Appeal that they had acted reasonably. This is yet another instance where a relatively insignificant case settled a major legal point. It was an expensive failure for the plaintiffs for they had to pay the costs of both sides and they had no customers under 15 years. Moreover, whereas the name Wednesbury has gone down in legal history; the name of Associated Provincial Picture Houses Ltd has been long forgotten. Lord Greene's judgment also established the principle that a local authority's decision, even if coming within its statutory powers, could still be unlawful on three grounds: • if it had taken into account matters it should have disregarded, • if it ignored matters it should have taken into account • if it was irrational and unreasonable. The case was followed by the Privy Council in Mercury Energy Ltd., and Electricity Corporation of New Zealand Ltd.,s and another, more recent example of the Wednesbury principle is the 1999 case of Newbold and Another v Leicester City Council. 6 Here, two employees of the council who were street cleaning drivers 5 6

[1994] 1 WLR 521. The Times. 20 August 1999.

Wednesbury Unreasonableness 105

lost standby and callout allowances when redeployed under a scheme negotiated with their trade union. By the scheme the council expected to save some £10,000 in the first six months of its operation and, as the employees were expected to lose 40% of their income it offered them payment of lump sum compensation of £10,000 each. Counsel advised, however, that payments to employees beyond the council's express statutory authority was not lawful following the case of Allsop v North Tyneside Metropolitan Borough Council. 7 In consequence the council recalculated the compensation at £3,000. The employees sued the council claiming that it was in breach of its original agreement. The issue was whether the original offer should not have been offered, as it was irrationally generous, outside the council's statutory powers and thus ineffective as a contractual variation. To demonstrate this, the council had to show that no local authority could have reasonably adopted and applied the scheme that had been initially offered. The judge in the court of first instance ruled that the offer was unreasonable but when the case reached the Court of Appeal the judges decided that the local authority had not acted unlawfully since the council had given anxious consideration to a number of factors including long-term and short-term savings in operating costs and the preservation of good industrial relations with its employees. Those, said their Lordships, were matters very much for the council's own assessment and not for the court.

7

[1992] RVR 104.

PART IV International Law CHAPTER 10

The Trials of Augusto Pinochet Right at the very end of the twentieth century a case arose which in practical terms came to nothing. It went from the magistrates' court to the Divisional Court and thence twice to the House of Lords. The Lords' ruling, which was enabling on the part of the home secretary, came to nought since the home secretary, for unconnected reasons, chose not to do what he was enabled to do. But their Lordships' decision had far-reaching consequences not only in the United Kingdom, but around the world. From now on no tyrannical leader will be able to set foot outside the borders of his own state without risking arrest and trial. As an interpretation of statute, a redefinition and clarification of the common law on immunity and because of the geographical breadth of its application this was truly a landmark case in international human rights law. Although the outcome had ultimately no effect on Augusto Pinochet himself, the Lords' ruling clarified and to some extent re-invented the ipternationallaw on immunity and their decision was rapidly accepted as authority by many countries around the world. The legal background The law on sovereign immunity remains in a formative stage, but it was clearly confirmed in 1977, in the case of Trendtex,t that all international law changes with the times. In his judgment in the case Lord Denning M.R. added that the courts had in the past applied such changes without the aid of any Act of Parliament. "Thus, when the rules of intemationallaw were changed (by the force of public opinion) so as to condemn slavery, the English courts were justified in applying the modem rules of international law." Here Lord Denning characteristically forgot to mention the Slavery Emancipation Act of 1833 and England's trendsetting role in abolishing slavery in the world, but he proceeded, "It follows too, that a decision of this court [the Court of Appeal] - as to what was the ruling of international law 50 or 60 years ago - is not binding on this court today ... I see no reason why we should wait for the House of Lords to make the change. After all, we are not here considering the rules of English law on which the House has the final say." Lord Stephenson added that, "Precedents handed down from earlier days should be treated as guides to lead, not as shackles to bind ... Some move must be made by states, or their tribunals, or. jurists, to prevent petrification of the living law."

1

[i977] Trendtex Trading Corporation v Central Bank of Nigeria QB 529.

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The importance of the Trendtex case lies in the fact that it dealt with the relationship between UK national law and international law, and the nature of international law. And, as Lord Denning saw it, "the rules of international law are incorporated into English law automatically." Significantly, it was also the first time that an English court had applied restrictions to its sovereign immunity laws. It was followed in 1978, a year later, by the enactment of the State Immunity Act. By Part 1 section 5 this statute excluded from immunity a range of commercial and financial crimes as well as personal injuries and damage to property in the United Kingdom. But it did not exclude crimes against humanity committed abroad, even if suffered by UK citizens. However, in 1994 a citizen of the UK, Sulaiman al-Adsani, appealed against a High Court ruling that the government of Kuwait was immune, under the State Immunity Act, from jurisdiction concerning his allegations of torture by the state security services in Kuwait. In the Court of Appeal the High Court ruling was reversed with Lord Justice Evans saying that, "... no state or sovereign immunity should be accorded even under the State Immunity Act in respect of acts which it is alleged are properly to be described as torture in contravention of international law.,,2 The Court of Appeal decision in al-Adsani's case was subsequently overruled in the Court of Appeal itself.3 This meant that at that stage the position was that the courts could not go behind the wording of the State Immunity Act, 1978 and British citizens tortured abroad by state security services had no legal redress of any kind in this country. Hence, although the Trendtex decision restricted immunity in order to protect British companies in their commercial dealings abroad it was not followed to protect British citizens from torture abroad - an example of Lord Stephenson's "petrification of the living law", far removed from Lord Denning's requirement that the law be "consonant with justice". The situation was changed, however, by section 134 Criminal Justice Act 1988 which proclaimed torture a universal crime, and enabled jurisdiction by UK courts regardless of where in the world the torture was carried out. This followed the requirement of the European Convention on Human Rights that specific domestic law should create the criminal offence of torture and make provisions for extradition. The scene was now set for a decision in the remarkable case of Senator Pinochet. Background to the Pinochet case Augusto Pinochet Ugarte (hereinafter referred to as "Pinochet") was a. General in the Chilean army. On 11 September 1973 there was a military coup and Pinochet assumed power and on the same day was appointed president of the ruling junta. Eleven days later the new regime was recognised by H.M. government and a year later, on 11 December 1974, General Pinochet assumed the title "President of the Republic". In 1980 there was a national referendum which approved a new constitution which provided for executive power to be exercised by the President of the Republic as head of state. Pinochet held that office until 1990 when, after a 2 3

Reported by Steven Wheatley, Redress for Torture Victims, Law Teacher 29, 1995,231/3. Michael Byers. AI-Adsani v Government of Kuwait and others [1966] British Year Book of International Law, 67, 1996.

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democratic general election, he handed over power to the new president on 11 March. He was then appointed Senator for life. The arrests When Pinochet came to Britain on a special diplomatic mission in 1994, and again in 1995 and 1997, he was afforded full diplomatic courtesies. In September 1998, at the age of 82, he returned and with the full knowledge of the Foreign Office he underwent an operation at the London Clinic. Just before midnight on 16 October, while still at the London Clinic, he was arrested pursuant to (the first) provisional warrant issued under section 8(1)(b) Extradition Act 1989 by a metropolitan stipendiary magistrate, Mr Nicholas Evans. On October 17 the Chilean government protested and claimed immunity on behalf of Pinochet as a visiting diplomat and former head of state. It was discovered that the provisional warrant, which was based on a claim of the Spanish government that Spanish citizens were murdered in Chile, was deemed to be bad since this had never been an extradition crime in this country. This flaw became apparent to the Crown Prosecution Service who were acting on behalf of the Spanish government, and a second international warrant of arrest which relied on events between 1973 and 1979 was issued by a Spanish court alleging crimes of terrorism, the infliction of severe pain and of genocide, which are extraditable offences. This resulted in a second provisional warrant of arrest, issued by another metropolitan stipendiary magistrate, Mr Ronald Bartle, and on this warrant Pinochet was re-arrested on October 23. The second provisional warrant was good because whereas the murder of a British citizen abroad is not an offence under English law, torture is, irrespective of where and on whom the torture was committed. Divisional Court hearing Pinochet appealed to the Divisional Court to have both warrants quashed, and the appeal was heard by Lord Chief Justice Bingham, Mr Justice Collins and Mr Justice Richards on 26 and 27 October.4 It was stated at once that the issue of the first provisional warrant was unlawful for the reasons mentioned above. As to the second warrant, a number of challenges were made. First, that the court had no power to issue the second warrant in response to one request. To this Lord Bingham said that the issue of more than one was undesirable but there were two Spanish warrants of arrest charging different offences and there was nothing in the relevant Act that precluded two provisional warrants from being in force at the same time. Secondly, it was contended that the magistrate was wrong in refusing an inter partes hearing before issuing the second warrant, but this was considered a question for the magistrate. Thirdly, that although the first four counts of the second warrant disclosed extradition crimes, at some of the dates in the warrants some of the offences were not crimes in English law; and that count 5 based on section 4 of the Suppression of Terrorism Act 1978 did not disclose an extradition crime since during part of the period covered Spain was not a convention country and Chile

4

The Times. 3 November 1998.

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never had been one, and conspiracy to murder was not covered by section 4. This, Lord Bingham regarded as a sound objection. Referring to references that had been made by Mr Alun Jones, counsel for the Crown Prosecution Service, to the Nuremberg Tribunal, the Tribunal for Former Yugoslavia and the Tribunal for Rwanda, the lord chief justice pointed out that they were international tribunals established by international agreement and did not violate the principle that one sovereign state could not implead another in relation to its sovereign acts. It was held by Lord Bingham, the two other judges concurring, that Pinochet was entitled, as a former sovereign, to immunity from the criminal and civil process Qf the English courts; and the warrants were quashed. However, no order was made on the application for habeas corpus but leave to appeal was granted. The Divisional Court also certified: ... that a point of law of general public importance was involved in the court's decision, namely the proper interpretation and scope of the immunity enjoyed by a former Head of State from arrest and extradition proceedings in the United Kingdom in respect of acts committed when he was Head of State.

First House of Lords appeal 5 The appeal began on 4 November and judgment was delivered on 25 November. The appeal was heard before Lords Slynn of Hadley, Lloyd of Berwick, Nicholls of Birkenhead, Steyn and Hoffman. To summarize what had happened so far, Pinochet, who had been arrested on provisional warrants, had appealed to the Divisional Court for an order of certiorari to quash the warrants for his arrest on three grounds: 1. State immunity under section 1 State Immunity Act 1978, which providing immunity to a foreign state from the jurisdiction of United Kingdom courts, extends it to a head of state in his public capacity; 2. Personal immunity for a head of state under section 20 of the 1978 Act which provides immunity to a head of state or former head of state in the exercise of his functions as head of state; 3. The common law "act of state" doctrine. The Divisional Court had decided that he was head of state at the time of the alleged offences and therefore he was entitled to immunity under section 1 of the 1978 Act. The commissioner of police and the Spanish government appealed to the House of Lords. Other than the representatives from the two sides, a number of interested organisations were given leave to lay before the House the arguments they wished to submit. Among these were The Medical Foundation for the Care of Victims of Torture, the Redress Trust, Human Rights Watch, the Association of the Relatives of the Disappeared Detainees, and the organisation that was to have a great bearing on the outcome other than that intended, Amnesty International.

5

R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (Amnesty International and others intervening) [1998] 4 All ER 897. [1998] 3 WLR 1456.

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The Lords decided on a majority of three to two to allow the appeal with Lords Slynn and Lloyd dissenting. Briefly, the court held that immunity for a head of state or former head of state applied only to acts performed whilst he was functioning as head of state. Torture and the taking of hostages could not be regarded as functions of a head of state. It was a principle of international law that such acts were not acceptable on the part of anyone, including a head of state. Since the offences with which Pinochet was charged were offences under United Kingdom statute law he had no immunity from the criminal process, including extradition. Lord Slynn began his dissenting speech by setting out the facts and explaining in great detail what had already happened. He acknowledged that some did not recognise Pinochet asa head of state as he was made President by a military junta, but he accepted that for purposes of the appeal he was head of state of Chile at all relevant times up to March 1990. He then proceeded to consider the procedural bar. He said, Can the respondent say that because the state is immune from proceedings he cannot be brought before the court, or can he say that as a former head of state he has an immunity of his own which, as I see it, is a derivative of the principle of state immunity. The starting point for both these claims is now the 1978 State Immunity Act. The long title of the 1978 Act states that this is (a) to make new provision in respect of proceedings in the UK by or against other states, and (b) to make new provision with respect to the immunities and privileges of heads of state. Part I deals with (a); Part III with (b).

Referring first to Part I, Lord Slynn pointed out that section 1(1) says that "A State is immune from the jurisdiction of the courts of the United Kingdom" (the general rule) except as provided in the following provisions of this Part of the Act" (the exceptions). Section 1 refers only to states and there is no indication that it covers state officials. Although section 1 referred only to a state as such, section 14(1) went further as references to a state included references to: (a) the sovereign or other head of that State in his public capacity; (b) the government of that State; and (c) any department of that government ...

The section did not deal with the position of a former head of state, and section 16(4) said that "this Part of the Act does not deal with criminal proceedings." It was contended that therefore a state was immune from criminal proceedings under section 16(4), and heads of states immune under section 14, but Lord Slynn was unable to agree. Crimes were excluded from section 1 since the number of crimes that a state could commit were limited compared to those of an individual. Consequently, the respondent (Pinochet) could not rely on Part I of the 1978 Act. Part III of the Act contained the essential provisions. Section 20(1) of the Diplomatic Privileges Act 1964 applies to (a) a sovereign or any other head of state; subsections (b) and (c) applies to his servants and family. Section 20(5) applies to heads of state on which immunities and privileges are conferred by

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Part I of the Act. However, section 20 of the 1978 Act deals with heads of state; there is no mention of a former head of state. Pointing out that section 2 Diplomatic Privileges Act 1964 says that the articles of the Vienna Convention of 1961 "shall have the force of law in the United Kingdom" Lord Slynn proceeded to analyse some of the relevant provisions of the Convention. He cited Article 29 which states "The person of a diplomatic agent shall be inviolable" and Article 31(1) which states "a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state". He said that the question arose as to what constituted acts in his function as head of state. It had been claimed that the functions of head of state must be defined by international law, not as national law or practice. This he rejected, considering that international law did not prescribe a list of functions since the role of head of state varied from state to state. International law recognised those functions which were attributed to him as head of state in the coUntry of which he was head. Furthermore, genocide, torture and hostage-taking could not be regarded as the functions of a head of state when they were regarded as crimes against internationallaw. 6 But if a head of state committed an illegal act whilst carrying out other functions that did not mean that he could no longer be regarded as carrying out those functions. Declining to draw a distinction between greater or lesser criminal acts, Lord Slynn quoted the words of Sir Arthur Watts in his Hague Lectures: A head of state can commit a crime in his personal capacity; but it seems equally clear that he can, in the course of his public functions as head of state, engage in conduct which may be tainted by criminality ... The critical test would seem to be whether their conduct was engaged in under the colour of or in ostensible exercise of the head of state's public authority. If it was, it must be treated as official conduct, and so not a subject to the jurisdiction of other States whether or not it was wrongful or illegal under the law of his own state.

In the present case the plans and instructions complained of came from the government and so the "Commander in Chief of the Armed Forces and the Head of the Chilean Government at the time committed punishable acts." Accordingly, Slynn concluded that the acts were done in his capacity of head of state. The next question was how far the concept of immunity spread. Lord Slynn quoted from the case of Duke of Brunswick v King ofHanover7: ... a foreign Sovereign, coming into this country, cannot be made responsible here for an act done in his sovereign character in his own country; whether it be an act right or wrong, whether according to the constitution of that country or not, the Courts of this country cannot sit in judgment upon an act of a Sovereign, effected by virtue of his Sovereign authority abroad, an act not done as a British subject, but supposed to be done in the exercise of his authority vested in him as Sovereign (Slynn's emphasis).

But what after a head of state had ceased to hold that office? According to Oppenheims's International Law,8 "From his official acts as head of state, he will

See Denza, E. 'Diplomatic Law' (2nd Ed. p363). [1848] 2 HL Cas I, 9 ER 993. 8 1992, 9th ed.

6

7

112 Famous Cases 9

like any other agent of the State enjoy continuing immunity." Satow is to the same effect: The personal status of a head of a foreign state continues to be regulated by long established rules of customary international law which can be stated in simple terms. He is entitled to immunity - probably without exception - from criminal and civil jurisdiction ... A head of state who has been deposed or replaced or has abdicated or resigned is of course no longer entitled to privileges or immunities as head of state. He will be entitled to continuing immunity in regard to acts which he performed while head of state, provided that the acts were performed in his official capacity; in this, his position is no different from that of any agent of the state. He cannot claim to be entitled to privileges as of right, although he may continue to enjoy certain privileges in other states on a basis of courtesy.

One difference between a head of state and a state ·was that the head of state could resign or be removed. International law extended immunity for acts performed in his capacity during his tenure of office but not from personal acts of his own. Although it was difficult to draw distinctions, there were examples and Lord Slynn gave a number of them. He said that: The fact that ... an act is recognised as a crime in international law does not mean that the courts of all states have jurisdiction to try it, nor in my view does it mean that the immunity recognised by states as part of their international relations is automatically taken away by international law. There is not universality of jurisdiction for crimes against international law; there is no universal rule that all crimes are outside immunity ratione materiae.

The next question he asked was whether international law recognised that some crimes were outside the protection of a former head of state's immunity so that immunity was equally limited under domestic law? After reviewing a number of authorities he concluded: ...it is artificial to say that an evil act can be treated as a function of a head of state until an international convention says the act is a crime when it ceases ex post facto to have been a function. If that is the right test, then it gives a clear date from which the immunity was lost. This may seem a strict test and a cautious approach, but in laying down when states are to be taken as abrogating a long established immunity it is necessary to be satisfied that they have done so.

Citing state doctrine he again quoted Oppenheim

10 :

... the courts of one state do not, as a rule, question the validity or legality of the official acts of another Sovereign State or the official or officially avowed acts of its agents, at any rate in so far as those acts involve the exercise of the state's public authority, purport to take effect within the sphere of the latter's own jurisdiction and are not in themselves contrary to international law.

91978, Guide to Diplomatic Practice, 5th ed. 10 Gp cif. P 365.

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Announcing his judgment, Lord Slynn concluded: Despite the divergent views expressed as to what is covered by the act of state doctrine, in my opinion once it is established that the former head of state is entitled to immunity from arrest and extradition on the lines I have indicated, United Kingdom courts will not adjudicate on the facts relied on to ground the arrest, but ... they will exercise judicial restraint or abstention. Accordingly, in my opinion, the respondent was entitled to claim immunity as a former head of state from arrest and extradition proceedings in the United Kingdom in respect of official acts committed by him whilst he was head of state relating to the charges in the provisional warrant of 22 October 1998. I would accordingly dismiss the appeal.

Lord Lloyd also began his judgment by relating the background to the case. Discussing the actual offences of which Pinochet was accused, he agreed that hostage-taking and torture are extradition crimes. He said: It was argued that torture and hostage-taking only became extradition crimes after 1988 (torture) and 1982 (hostage-taking) since neither section 134 of the 1988 Act nor section 1 of the 1982 Act are retrospective. But I agree with the Divisional Court that this argument is bad. It involves a misunderstanding of the 1989 Act. Section 2(1)(a) refers to conduct which would constitute an offence in the United Kingdom now. It does not refer to conduct which would have constituted an offence then [Le. when Pinochet was head of state].

Although the second provisional warrant hung by a very narrow thread" of torture allegations during the period 1 January 1988 to 11 March 1990, he agreed that the second provisional warrant was no longer the critical document and that they should be looking at the complete list of crimes alleged by the Spanish government. Having cleared the ground thus, Lord Lloyd then summarised the main issues that had emerged. 1/

(1) Is Senator Pinochet entitled to immunity as a former head of state at common law? This depends on the requirements of customary international law, which are observed and enforced by our courts as part of common law. (2) Is Senator Pinochet entitled to immunity as a former head of state under Part I of the State Immunity Act 1978? If not, does Part I of the 1978 Act cut down or affect any immunity to which he would otherwise be entitled at common law? (3) Is Senator Pinochet entitled to immunity as a former head of state under Part III of the 1978 Act, and the articles of the Vienna Convention as set out in the Schedule to the Diplomatic Privileges Act 1964? It should be noticed that despite an assertion by the Chilean government that Senator Pinochet is at present in England on a diplomatic passport at the request of the Royal Ordnance, Miss Clare Montgomery QC does not seek to argue that he is entitled to diplomatic immunity on that narrow ground, for which, she says, she cannot produce the appropriate evidence. (4) Is this a case where the court ought to decline jurisdiction on the ground that the issues raised are non-justiciable?

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Before discussing these issues he pointed out that state immunity and nonjusticiability often overlapped in practice but were separate in law. State immunity is a principle of public intemationallaw; non-justiciability goes to the substance of the issues to be decided. State immunity can be waived by the state; nonjusticiability,being a substantive bar to adjudication, cannot. Coming to Issue 1, Lord Lloyd also quoted Oppenheim: l1 The application of international law as part of the law of the land means that, subject to the overriding effect of statute law, rights and duties flowing from the rules of customary international law will be recognised and given effect by English courts without the need for any specific Act adopting these rules into English law.

So what, he continued, is the relevant rule of customary intemationallaw? I cannot put it better than it is put by the applicants themselves in para 26 of their written case: 'No international agreement specifically provides for the immunities of a former head of state. However, under customary international law, it is accepted that a state is entitled to expect that its former head of state will not be subjected to the jurisdiction of the courts of another state for certain categories of acts performed while he was head of state unless immunity is waived by the current government of the state of which he was once the head. The immunity is accorded for the benefit not of the former head of state himself but for the state of which he was once the head and any international law obligations are owed to that state and not to the individual.' The important point to notice in this formulation of the immunity principle is that the rationale is the same for former heads of state as it is for current heads of state. In each case the obligation in international law is owed to the state and not to the individual ... this rationale explains why it is the state, and the state alone, which can waive the immunity. Where, therefore, a state is seeking the extradition of its own head of state ... the immunity is waived ex hypothesi ... but here the situation is the reverse. Chile is not waiving its immunity ... it is asserting that immunity in the strongest possible terms, both in respect of the Spanish international warrant, and also in respect of the extradition proceedings in the United Kingdom... [There is a] distinction drawn between customary international law ... between private acts on the one hand, and public, official or government acts on the other. Again I cannot put it better than it is put by the appellants ... 'It is generally agreed that private acts performed by the former head of state attract no such immunity. Official acts, on the other hand, will normally attract immunity ... Immunity in respect of such acts, which has sometimes been applied to officials below the rank of head of state, is an aspect of the principle that the courts of one state will not normally exercise jurisdiction in respect of the sovereign acts of another.'

11

Op cit. p57.

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Lord Lloyd then proceeded to discuss a number of.cases which supported his contention that a former head of state cannot be prosecuted in the municipal courts of a foreign state for his official acts as head of state. He concluded that: Where a person is accused of organising the commission of crimes as the head of the government, in co-operation with other governments, and carrying out those crimes through the agency of the police and the secret service, the inevitable conclusion must be that he was acting in a sovereign capacity and not in a personal or private capacity. But the appellants have two further arguments. First they say that the crimes alleged against Senator Pinochet are so horrific that an exception must be made to the ordinary rule of customary international law. Secondly they say that the crimes in question are crimes against international law, and that international law cannot both condemn conduct as a breach of international law and at the same time grant immunity from prosecution. ... As to the first submission, the difficulty, as the Divisional Court pointed out, is to know where to draw the line ... I agree with Collins J ... that it would be unjustifiable in theory and unworkable in practice, to impose any restrictions on he~d of state immunity by reference to the number or gravity of the alleged crimes... As to the second submission, the question is whether there should be an exception from the general rule of immunity in the case of crimes ...such as the Taking of Hostages Convention and the Torture Convention ... But there is nothing in the Torture Convention which touches on state immunity.

This was in stark contrast with the Genocide convention, Article 4 of which provides: Persons committing genocide or any other acts enumerated in article 3 shall be punished whether they are constitutionally responsible rulers or public officials or private individuals.

On the first issue Lord Lloyd held that Senator Pinochet is entitled to immunity as former head of state in respect of the crimes alleged against him on well-established principles of customary intemationallaw, which principles form part of the common law of England.

Turning next to the second issue Lord Lloyd quoted the relevant parts of the 1978 Act: 1(1) A state is immune from the jurisdiction of the courts of the United Kingdom except as provided in the ...provisions of this Part of the Act: 14(1) The immunities and privileges conferred by this Part of the Act apply to any foreign or commonwealth State other than the United Kingdom; and references to a State include references to -- (a) the sovereign or other head of that State in his public capacity ... 16(4) This Part of the Act does not apply to criminal proceedings.

He pointed out that Mr Nicholls (for the appellant) ... drew attention to the width of section 1(1) of the Act. He submitted that it confirms the rule of absolute immunity at common law, subject. to the exceptions

116 Famous Cases contained in sections 2 to 11 ... Faced with the objection that Pt I of the Act is stated not to apply to criminal proceedings by virtue of the exclusion in section 16(4) he argues that the exclusion applies only to ss. 2 to 11. This was a bold argument, and I cannot accept it. I can see no reason why section 16(4) should not also apply to section 1(1). In my opinion the immunity of a former head of state in respect of criminal acts committed by him in exercise of sovereign power is untouched by Part I of the Act.

The third issue dealt with immunity under Part III of the Act, the relevant provision of which is contained in section 20 which reads: (1) ... the Diplomatic Privileges Act 1964 shall apply to - (a) a sovereign or other head of state ... (5) This section applies to a sovereign or other head of state on which immunities and privileges are conferred by Part I of this Act ...

The question arose whether the common law immunities have been abolished by statute. So far as the immunities and privileges of diplomats are concerned, this may well be the case. Whether the same applies to heads of state is more debatable... In my view the immunities to which Senator Pinochet is entitled under section 20 of the 1978 Act are identical to the immunities that he enjoys under common law.

After discussing several Articles of the Vienna Convention he concluded that, the answer is the same whether at common law or under the statute. And the rationale is the same. The former head of state enjoys continuing immunity in respect of governmental acts which he performed as head of state because in both cases the acts are attributed to the state itself.

The final issue was that of justiciability. Lord Lloyd began by saying that if he was right that Pinochet was entitled to immunity under common law and under statute then the question of justiciability did not arise. However, because of its importance he discussed a number of cases in which the concept arose and 12 quoted Lord Wilberforce with approval: 'In my opinion there is, and for long has been, ... a general principle, starting in English law, adopted and generalised in the law of the United States ofAmerica which is effective and compelling in English courts. This principle is not one of discretion, but is inherent in the very nature of the judicial process.'

The whole thrust of Lord Wilberforce's speech was that non-justiciability ... is a flexible principle, depending on the circumstances of the particular case. If I had not been of the view that Senator Pinochet is entitled to immunity as a former head of state, I should have held that the principle of non-justiciability applies.

12

[1981] 3 All ER 616 at 628

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For these reasons, and the reasons given in the Divisional Court with which I agree, I would dismiss the appeal.

At this point the appeal would be dismissed by two of the five law Lords on different, but carefully argued legal grounds. It needed but one further judge of similar conviction for Pinochet to be on his way home. But next came the judgments that would support the appeal. Lord Nicholls began by stating that of the five offences charged under the Spanish warrant pursuant to the Extradition Act 1989 section 8(b)(1) he would refer only to two. The first was committing torture contrary to section 134(1) of the Criminal Justice Act 1988 which defines the offence thus: A public official or person acting in an official capacity, whatever his nationality, commits the crime of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.

The other offence he would deal with was the Taking of Hostages Act 1982, section 1 of which defines the offence as follows: A person, whatever his nationality, who, in the United Kingdom or elsewhere, - (a) detains any other person (lithe hostage"), and (b) in order to compel a State, international governmental organisation or person to do or abstain from doing any act, threatens to kill, injure, or continue to detain the hostage, commits an offence.

Both offences carry life imprisonment and both are extradition crimes. Referring to section 20 of the 1978 Act that confers personal immunity on a "head of state, his family and servants ... (with necessary modifications)" and the relevant article of the Vienna Convention, Lord Nicholls concluded that, there can be no doubt that if Senator Pinochet had still been head of the Chilean state, he would have been entitled to immunity. Whether he continues to enjoy immunity after ceasing to be head of state turns upon the proper interpretation of art. 39(2) of the convention: ' ...with respect to acts performed by such a person in the exercise of his functions as a member of the mission immunity shall continue to subsist.' The 'necessary modification' required by section 20 of the 1978 Act is to read 'as a head of state' in place of 'as a member of the mission' ... the effect of these provisions can be expressed thus: 'A former head of state shall continue to enjoy immunity from the criminal jurisdiction of the United Kingdom with respect to acts performed by him in the exercise of his functions as head of state'.

After giving his opinion that in the case of a former head of state the continuing immunity embraced acts performed in exercise of any of his 'functions as head of state', he continued,

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... the crucial question in this case is whether the acts of torture and hostage-taking charged against Senator Pinochet were done in the exercise of his functions as head of state. The Divisional Court decided that they were ... [and] held that, for the purposes of art 39(2), the functions of head of state included any acts done under purported public authority in Chile. Lord Bingham CJ said the underlying rationale of the immunity afforded by art. 39(2) was "a rule of international comity restraining one sovereign state from sitting in judgment on the sovereign behaviour of another". It therefore applied to all sovereign conduct within Chile. ... In my view, art. 39(2) of the Vienna Convention, as modified and applied to former heads of state by section 20 of the 1978 Act, is apt to confer immunity in respect of acts performed in the exercise of functions which international law recognises as functions of a head of state irrespective of the terms of his domestic constitution ... And it hardly needs saying that the torture of his own subjects, or of aliens, would not be regarded by international law as a function of a head of state ... international law has made it plain that certain types of conduct, including torture and hostage-taking, are not acceptable conduct on the part of anyone. That applies as much to heads of state, or even more so, as it does to everyone else; the contrary conclusion would make a mockery of international law.

Having got thus far Lord Nicholls had argued that former heads of state are entitled to the same immunity as heads of state provided that they were carrying out their functions in that capacity. But hostage-taking and torture could not, in intemationallaw, be construed as the functions of a head of state. So on the first ground it appears that immunity would not extend to Pinochet for this reason. Lord Nicholls then turned to the question of residual immunity. I have no doubt, he said, that a current head of state is immune from criminal process under customary intemationallaw. This is reflected in section 20 of the 1978 Act. There is no authority on whether customary intemationallaw grants such immunity to a former head of state of other state official on the ground that he was acting under colour of domestic authority. Given the largely territorial nature of criminal jurisdiction, it will be seldom that the point arises. In times past, he continued, the sovereign was indistinguishable from the state, and in such times it would be expected that a former head of state would be given immunity in respect of acts done when he was head of state, as such acts were indistinguishable from acts done by the state itself. Nowadays, state acts are largely performed by ministers, the head of state often having a largely ceremonial role. Consequently, ... it would be attractive for personal immunity to be available to all former public officials, including a former head of state, in respect of acts which are properly attributable to the state itself ... ... Even such a broad principle, however, would not assist Senator Pinochet. In the same way as acts of torture and hostage-taking stand outside the limited immunity afforded to a former head of state by section 20, because those acts cannot be regarded by international law as a function of a head of state, so for a similar reason Senator Pinochet cannot bring himself within any such broad principle applicable to state officials. Acts of torture and hostage-taking, outlawed as they are by international law, cannot be attributed to the state to the exclusion of personable liability.

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So on the second ground, it was not possible to say that torture and hostagetaking were acts of the state and not of an individual since such acts are outlawed by international law. The Taking of Hostages Convention had described hostagetaking as a manifestation of international terrorism. Former officials, however senior, should not be immune from prosecution outside their own jurisdictions if they commit an international crime. Lord Nicholls concluded his judgment: I would allow this appeal. It cannot be stated too plainly that the acts of torture and hostage-taking with which Senator Pinochet is charged are offences under United Kingdom statute law. This country has taken extra-territorial jurisdiction for these crimes. The sole question before your Lordships is whether, by reason of his status as a former head of state, Senator Pinochet is immune from the criminal processes of this country, of which extradition forms a part. Arguments about this country's diplomatic relations with Chile if extradition were allowed to proceed, or with Spain if refused, are not matters for the court. They are, par excellence, political matters for the Secretary of State [the home secretary] in the exercise of his discretion under section 12 of the 1989 Act.

These closing words simplify a complex argument. The crimes with which Pinochet was charged are crimes in the United Kingdom; the U.K. regards them as crimes even if committed elsewhere. Diplomatic niceties are not the business of the court but the province of the home secretary when he decides whether to extradite Pinochet or not; all the court could do is give him the option. The final speech was by Lord Steyn. He, too, began, by briefly relating the events leading to the appeal. General Pinochet applied to the Divisional Court for a ruling that he is entitled to immunity as a former head of state from criminal and civil process in the English courts. He obtained a ruling to that effect. If that ruling is correct the extradition proceedings are at an end.

He recalled that 16 barristers were involved over six days and that there were many issues, some of which did not need to be decided. He therefore confined his observations on what he considered three central issues, namely, • the nature of the charges brought by Spain against General Pinochet; • the question whether he is entitled to former head of state immunity under the applicable statutory provisions, and • if he is not entitled to such immunity, the different question whether under the common law act of state doctrine the House ought to declare that the matters involved are not justiciable in our courts. He began with the case against Pinochet, pointing out that Lord Bingharn had said that the thrust of the warrant "makes it plain that the applicant is charged not with personally torturing and murdering victims or ordering their disappearance, but with using the power of the State to that end". There was a systematic campaign of repression after the military coup on 11 September 1973.

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The case is that of the order of 4,000 individuals were killed or simply disappeared. Such killings and disappearances mostly took place in Chile but some also took place in various countries abroad. Such acts were committed during the period from 11 September 1973 until 1990. The climax of the oppression was reached in 1974 and 1975. The principle instrument of the oppression was the DINA, the secret police.

After describing some of the more commonly employed torture methods, Lord Steyn continued: As the Divisional Court observed it is not alleged that General Pinochet personally committed any of these acts by his own hand, the case is, however, that agents of the DINA committed the acts of torture, and that the DINA was directly answerable to General Pinochet rather than to the military junta. And the case is that the DINA undertook and arranged the killings, disappearance and torturing of victims on the orders of General Pinochet. In other words, what is alleged against General Pinochet is not constructive criminal responsibility. The case is that he ordered and procured the criminal acts which the warrant and request for extradition specify. The allegations have not been tested in a court of law. The- House is not required to examine the correctness of the allegations. The House must assume the correctness of the allegations as the backcloth of the questions of law arising on this appeal.

Thus, in Lord Steyn's view, two points had emerged. First, in considering the appeal it was not necessary first to prove the charges against Pinochet, it was enough that they were alleged. Second, it did not matter that Pinochet did not commit the acts personally, it was enough that they were committed by agents directly answerable to him. Turning to the question whether Pinochet was entitled to former head of state immunity, Lord Steyn analysed the position with regard to the differences and similarities between the 1978 Act, the Diplomatic Privileges Act 1964 and articles 31, 38 and 39 of the Vienna Convention. From this he concluded that it was ...plain that the statutory immunity in favour of a former head of state is not absolute. It requires the coincidence of two requirements: (1) that the defendant is a former head of state (ratione personae in the vocabulary of international law) and (2) that he is charged with official acts performed in the exercise of his functions as head of state (ratione materiae). In regard to the second requirement it is not sufficient that official acts are involved: the acts must also have been performed by the defendant in the exercise of his functions as a head of state. On the assumption that the allegations of fact contained in the warrant and the request are true, the central question is whether those facts must be regarded as official acts performed in the exercise of the functions of a head of state. Lord Bingham CJ observed that a former head of state is clearly entitled to immunity from process in respect of some crimes. I would accept this proposition. Rhetorically, Lord Bingham CJ then posed the question: "Where does one draw the line?" After a detailed review of the case law and literature, he concluded that even in respect of acts of torture the former head of state immunity would prevail. That amounts to saying that there is no or virtually no line to be drawn. Collins J went further. He said:

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'The submission was made that it could never be in the exercise of such functions to commit crimes as serious as those allegedly committed by the applicant. Unfortunately, history shows that it is indeed on occasions been state policy to exterminate or oppress particular groups. One does not have to look very far back in history to see examples of the sort of thing having happened. There is in my judgment no justification for reading any limitation based on the nature of crimes committed into the immunity that exists.'

This was a remarkable statement of Mr Justice Collins in answer to Lord Bingham's question. It meant, in essence, that once it has been accepted that a person had immunity, he continued to enjoy such immunity no matter how horrendous the crimes he committed. Lord Steyn was not slow to point out the import of such an extreme view: It is inherent in this stark conclusion that there is no or virtually no line to be drawn. It follows that when Hitler ordered the 'final solution' his act must be regarded as an official act deriving from the exercise of his functions as head of state. That is where the reasoning of the Divisional Court inexorably leads. Counsel for General Pinochet submitted that this conclusion is the inescapable fact of statutory wording.

This view of immunity without end was too much for Lord Steyn to swallow: that once a head of state had immunity he could do anything with impunity. He proceeded to give examples of a head of state killing his gardener in a fit of rage, or arranging for victims to be tortured in his presence for the enjoyment of watching them suffer as occasions which could not be described as exercising his functions as head of state. If there were no line drawn millions of people would be unprotected from tyrants operating within their own borders committing the most horrendous crimes and subsequently being able to move around the world free of any fear of lawful retribution. It was a view too awful to contemplate. Thus a line must be drawn. But, he went on, How and where the line is to be drawn requires further examination. Is this question to be asked from the vantage point of the municipal law of Chile, where most of the acts were committed, or in the light of the principles of customary international law? ... It is conceded on behalf of General Pinochet that the distinction between official acts performed ... as head of state [and those not] must depend on the rule of international law ... the development of [it] since the 1939-45 war justifies the conclusion that by the time of the 1973 coup d'etat, and certainly ever since, international law condemned genocide, torture, hostage-taking and crimes against humanity (during an armed conflict or in peace time) as international crimes deserving of punishment. Given the state of international law, it seems to me difficult to maintain that the commission of such high crimes may amount to acts performed in the exercise of the functions of a head of state.

Given that a line must be drawn beyond which acts committed by a head of state would not attract immunity, and realising that such a line would not only be difficult to draw but that the position of such a line would not be universally accepted and would become a matter of dispute, Lord Steyn dodged that particular issue and argued that such crimes as he listed, long condemned by intemationallaw, could not be acts performed whilst exercising the functions of

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a head of state, and for that reason the head of state performing them would not be immune from punishment. He continued: The essential fragility of the claim to immunity is underlined by the persistence on behalf of General Pinochet that it is not alleged that he 'personally' committed any of the crimes. That means that he did not commit the crimes by his own hand. It is apparently conceded that if he personally tortured victims the position would be different. This distinction flies in the face of an elementary principle of law, shared by all legal systems, that there is no distinction to be drawn between the man who strikes and the man who orders another to strike.

Dismissing suggestions that what was allegedly done "in secret in the torture chambers of Santiago on the orders of General Pinochet be regarded as official acts" Lord Steyn concluded his comments on his second point: For my part I am satisfied that as a matter of construction of the relevant statutory provisions the charges brought by Spain against General Pinochet are properly to be classified as conduct falling beyond the scope of his functions as head of state ... in my view General Pinochet has no statutory immunity.

Nor was he entitled to immunity under customary international law. Had such existed it would have been overridden by section 20 of the 1978 Act together with art 39(2) of the Vienna Convention. Pinochet was entitled to no immunity"of any kind". After giving four reasons why the "act of state" doctrine was inapplicable Lord Steyn concluded: My Lords, since the hearing in the Divisional Court the case has in a number of ways been transformed. The nature of the case against General Pinochet is now far clearer. And the House has the benefit of valuable submissions from distinguished international lawyers. In the light of all the material now available I have been persuaded that the conclusion of the Divisional Court was wrong. For the reasons I have given I would allow the appeal.

It was now two in favour and two against allowing the appeal. Only the judgment of Lord Hoffman was to come. He made no speech but merely said, My Lords, I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Nicholls of Birkenhead and Lord Steyn and for the reasons they give I too would allow the appeal.

It seemed that the case was over. The appeal was allowed, it was determined that Pinochet had no immunity and the way was clear for the home secretary to extradite him. But the case had one further twist, and it was· given by Lord Hoffman, the law lord who had said least. The problem As described above, the Lords' judgment, which was delivered on 25 November 1998, was by a majority of three to two; Lords Steyn and Nicholls each gave speeches supporting their decision but whereas Lord Hoffmann agreed with them he delivered no speech of his own. '

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Resulting from this decision Pinochet was required to remain in England whilst the home secretary decided whether to continue proceedings for his extradition under section 7(1) Extradition Act 1989. On the very evening of the Lords' decision a television programme ("Newsnight") carried an allegation from a speaker in Chile that Lord Hoffmann's wife was connected in some way with Amnesty International (AI). Based on this information representations were made on Pinochet's behalf to the home secretary which drew his attention to Lady Hoffmann's position and to the law relating to bias. It was claimed that the home secretary should disregard the decision of Lord Hoffmann and pointed out that only he, the home secretary, could give protection against a House of Lords ruling, and carried a veiled threat that if this were not forthcoming an appeal to the European Court of Human Rights would be made. On December 10 Pinochet lodged a petition asking that the order of November 25 should be completely set aside, or that the opinion of Lord Hoffmann should be declared to be of no effect. The oral judgment on the petition was given on 17 December 1998 and the reasons given on 17 January 1999. 13 The petition The petition was heard by Lords Browne Wilkinson, Goff of Chievely, Nolan, Hope of Craighead and Hutton. Although all their Lordships delivered speeches, their judgment was unanimous and the comprehensive speech of Lord Brown Wilkinson contained all the relevant information. He began by briefly setting out the substance of the petition: ... to set aside an order made by your Lordships on 25 November 1998. It is said that the links between one of the members of the Appellate Committee who heard the appeal, Lord Hoffmann, and Amnesty International were such as to give the appearance that he might have been biased against Senator Pinochet.

After relating the background facts leading to the Divisional Court ruling he continued, The Divisional Court having quashed the provisional warrant of 23 October on the ground that Senator Pinochet was entitled to immunity ... the matter proceeded to your Lordships' House with great speed ... However, before the main hearing of the appeal, there was an interlocutory decision of the greatest importance for the purpose of the present application. Amnesty International, two other human rights bodies and three individuals petitioned for leave to intervene in the appeal. Such leave was granted by a committee consisting of Lord Slynn, Lord Nicholls and Lord Steyn subject to any protest being made by other parties at the start of the main hearing. No such protest having been made, Amnesty International accordingly became an intervener in the appeal. At the hearing of the appeal Amnesty International not only put in written submissions but was also represented by counsel.

Lord Browne Wilkinson then proceeded to describe the world-wide interest in the case, the large public attendance at the appellate hearings and the picketing outside Parliament: the issue for many people was a moral rather than a legal one.

13

Opinions of the Lords ofAppeal for Judgment in the Cause in Re: Pinochet. [1999] WLR 272.

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He then related the events that occurred immediately after the Lords' decision and the representation to the home secretary. He said: ... Senator Pinochet's legal advisors received a letter dated 1 December 1998 from the solicitors acting for Amnesty International written in response to a request for information as to Lord Hoffmann's links.

Lord Browne Wilkinson quoted relevant parts of the letter, some of which read: ' ... we are informed by our clients, Amnesty International, that Lady Hoffmann has been working at their International Secretariat since 1977. She has always been employed in administrative positions, primarily in their department dealing with press and publications ...Lady Hoffmann ... has not been consulted or otherwise involved in any substantive discussions or decisions by Amnesty International, including in relation to the Pinochet case.'

After a man anonymously telephoned Senator Pinochet's solicitors on December 7 they received next day a letter from solicitors acting for AI (who had been in touch with Lord Hoffmann) which partially read: 'Lord Hoffmann is a Director and Chairperson of Amnesty International Charity Limited (AICL).... Since 1990 Lord Hoffmann and Peter Duffy QC have been the two directors of AICL. They are neither employed nor remunerated by either AICL or AIL (Amnesty International Ltd). They have not been consulted and have not had any other role in Amnesty International's interventions in the case of Pinochet. Lord Hoffmann is not a member of Amnesty International. In addition, in 1997 Lord Hoffmann helped in the organisation of a fundraising appeal for a new building for Amnesty International UK ... he helped organise this appeal together with other senior legal figures, including the Lord Chief Justice, Lord Bingham. In February your firm [Pinochet's solicitors] contributed £1,000 to this appeal. You should also note that in 1982 Lord Hoffmann, when practising at the Bar, appeared in the Chancery Division for Amnesty International UK.'

The home secretary, having been advised of the contents of the letter, gave his authority to proceed, and On 10 December 1998, Senator Pinochet lodged the present petition asking that the order of 25 November 1998 should either be set aside completely or the opinion of Lord Hoffmann should be declared to be of no effect. The sole ground relied upon was that Lord Hoffmann's links with AI were such as to give the appearance of possible bias. It is important to stress that Senator Pinochet makes no allegation of actual bias against Lord Hoffmann; his claim is based on the requirement that justice should be seen to be done as well as actually being done.

Lord Browne Wilkinson then described the activities of Amnesty International, which are well known, and its links with its sister organizations AIeL and AIL before turning to the submissions by the parties. He related that: Miss Montgomery QC ... on behalf of Senator Pinochet contended:

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'I. That, although there was no exact precedent, your Lordships' House must have jurisdiction to set aside its own orders where they· have been improperly made, since there is no other court which could correct such impropriety. 2. That (applying the test in Reg. V Cough [1993] AC 646) the links between Lord Hoffmann and AI were such that there was a real danger that Lord Hoffmann was biased in favour of AI or alternately (applying the test in Webb v The Queen (1994) 181 Crim.L.R. 41) that such links gave rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that Lord Hoffmann might have been so biased.' On the other side, Mr Alun Jones QC ... contended that there was no case for such revocation ... he submitted ... it was impossible to say that there was a real danger that Lord Hoffmann had been biased against Senator Pinochet.

Their jurisdiction, continued Lord Browne Wilkinson, was not in dispute, but he made it clear that they would not reopen any appeal unless, even. through no fault of a party, someone had been subjected to an unfair procedure. On the question of bias, he emphasised that it had been alleged that there was an appearance of bias, not actual bias. The fundamental principle was that a man may not be a judge in his own cause. In his opinion the present case fell under that category. Irrespective of whether there was a likelihood or suspicion of bias, the "mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure." Lord Hoffmann, AICL and the Executive Committee of AI are in law separate people. Then is this a case in which it can be said that Lord Hoffmann had an 'interest' which must lead to his automatic disqualification? Hitherto only pecuniary and proprietary interests have led to automatic disqualification. ...One [of the] objects [of AICL] is "to procure the abolition of torture, extra-judicial execution and disappearance". AI has ... the same objects.

What was unusual in the case was that any interest that Lord Hoffmann had was non-pecuniary and whether this was sufficient to result in his disqua~ication. All previous cases dealt with automatic disqualification on the grounds of pecuniary interest. He continued that "there is no good reason in principle for so limiting automatic disqualification." He supported this view by relating a number of cases and concluded: ... for these reasons ... I reluctantly felt bound to set aside the order of 25 November 1998. It was appropriate to direct a re-hearing of the appeal before a differently constituted Committee, so that on the re-hearing the parties were not faced with a Committee four of whom had already expressed their conclusion on the points at issue.

The other judges agreed. Second House of Lords appeal The second appeal needed to be started quickly. From a small number of law lords five were already eliminated and some otherwise engaged. It was also essential that there be no more hitches so seven rather than the previous five made up the new

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Committee: Lords Browne Wilkinson, Goff of Chievely, Hope of Craighead, Hutton, Saville of Newdigate, Millett and Phillips of Worth Matravers. 14 After taking time for consideration, judgment was given·on 24 March 1999. Lord Browne Wilkinson began by outlining the law. In general, he said, a state only exercises criminal jurisdiction over offences which occur within its geographic boundaries. If a person who is alleged to have committed a crime in Spain is found in the United Kingdom, Spain can apply to the United Kingdom to extradite him to Spain. The power to extradite from the United Kingdom for an "extradition crime" is now contained in the Extradition Act 1989. That Act defines what constitutes an "extradition crime" ... the most important requirement is that the conduct complained of must constitute a crime under the law both of Spain and of the United Kingdom. This is known as the double criminality rule. Since ... the Nuremberg trials, international law has recognised a number of offences as being international crimes even in cases where such crimes were not committed within the geographical boundaries of such states. The most important of such international crimes is torture which is regulated by the [Torture Convention, the obligations of which] were incorporated into the law of the United Kingdom by section 134 of the Criminal Justice Act 1988 [which] came into force on 29 September 1988. Section 134 created a new crime under United Kingdom law, the crime of torture. As required by the Torture Convention 'all' torture wherever committed world-wide was made criminal under United Kingdom law and triable in the United Kingdom. No one has suggested that before section 134 came into effect torture committed outside the United Kingdom was a crime under United Kingdom law. Nor is it suggested that section 134 was retrospective so as to make torture committed outside the United Kingdom before 29 September 1988 a United Kingdom crime.

Lord Browne Wilkinson at this point made it clear that torture was not a crime in the United Kingdom before a certain date in 1988. The result of this was that torture perpetrated before this date would not fulfil the double criminality rule. He went on to quote Lord Hope who had summarised the charges with their dates. This summary proved crucial and is reproduced here: Charges 1, 2 and 5: conspiracy to torture between 1 January 1972 and 20 September 1973 and between 1 August 1973 and 1 January 1990. Charge 3: conspiracy to take hostages between 1 August 1973 and 1 January 1990. Charge 4: conspiracy to torture in furtherance of which murder was committed in various countries including Italy, France, Spain and Portugal, between 1 January 1972 and 1 January 1990. Charges 6 and 8: torture between 1 August 1973 and 8 August 1973 and on 11 September 1973. Charges 9 and 12: conspiracy to murder in Spain between 1 January 1975 and 31 December 1976 and in Italy on6 October 1975. Charges 10 and 11: attempted murder in Italy on 6 October 1975. Charges 13-29; and 31-32: torture on various occasions between 11 September 1973 and May 1977. Charge 30: torture on 24 June 1989. 14

[1999] 2 All ER 99. The Times. 25 March 1999.

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Lord Browne Wilkinson then pointed out that some of the charges relating to torture and conspiracy were not extradition crimes" because when the acts were done they were not crimes under UK law and therefore could not lead to an extradition order against Pinochet. However, under section 1(1) of the 1989 Act a person who is accused of an extradition crime" may be arrested and returned to the state which has requested extradition. The 1989 Act regulates some three types of extradition. First, extradition to a Commonwealth country, a colony or to a foreign country not party to the European Convention on Extradition 1957. Second, where extradition is sought by a country like Spain, which is a party to the Convention. The third class consists of those cases where there is an Order in Council in force under the Extradition Act 1870. Under the 1870 Act the double criminality rule requires the conduct to be criminal under English law at the date it was carried out (the conduct date) not at the date the request for extradition was made (the request date). As Lord Browne Wilkinson said, 11

11

... in this class of case [extradition crime] regulated by Sch. 1 of the 1989 Act the same position applies as it formerly did under the 1870 Act, i.e. the conduct has to be a crime under English law at the conduct date. It would be extraordinary if the same Act required criminality under English law to be shown at one date for one form of extradition and at another date for another.

Considering the charges which alleged extradition crimes, Lord Browne Wilkinson, referring to the speech of Lord Hope, said that the charges of torture and conspiracy to torture relating to conduct before 29 September 1988 were not extraditable, and that the only charge relating to hostage-taking disclosed no offence under the Taking of Hostages Act 1982; these charges did not therefore constitute extradition crimes. But the charge of conspiracy in Spain to murder in Spain, and such conspiracies in Spain prior to 29 September 1988 to commit acts of torture in Spain were extradition crimes. He then discussed the Torture Convention. Torture was the intentional infliction of severe pain and of suffering ... (1) 'by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an . official capacity' ... but these words include a head of state. A single act of torture is torture within the convention; (2) superior orders provide no defence; (3) if the states with the most obvious jurisdiction (the art. 5(1) states) do not seek to extradite, the state where the alleged torturer is found must prosecute or, apparently, extradite to another country, i.e. there is universal jurisdiction; (4) there is no express provision dealing with state immunity of heads of state, ambassadors or other officials. (5) since Chile, Spain and the United Kingdom are all parties to the Convention, they are bound under treaty by its provisions whether or not such provisions would apply in the absence of treaty obligations. Chile ratified the convention with effect from 30 October 1988 and the United Kingdom with effect from 8 December 1988.

Having delineated the nature of extradition crimes and outlined the salient points of the Torture Convention Lord Browne Wilkinson then turned to 'the

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point around which most of the argument turned': the question of state immunity. He said: It is of considerable general importance internationally since, if Senator Pinochet is not entitled to immunity in relation to the acts of torture alleged to have occurred after 29 September 1988 it will be the first time, so. far as counsel have discovered, when a local domestic court has refused to afford immunity to a head of state or former head of state on the grounds that there can be no immunity against prosecution for certain international crimes. ...It is a basic principle of international law that one sovereign state (the forum s,tate) does not adjudicate on the conduct of a foreign state ... the head of state is entitled to the same immunity as the state itself. The diplomatic representative of the foreign state in the forum state is also afforded the same immunity in recognition of the dignity of the state which he represents. This immunity enjoyed by a head of state in power and an ambas~ador in post is a complete immunity attaching to the person of a head of state or ambassador and rendering him immune from all actions, or prosecutions whether or not they relate to matters done for the benefit of the state. Such immunity is said to be granted ratione personae. ... when the ambassador leaves his post or the head of state is deposed ... [t]he position ... is covered by the Vienna Convention on Diplomatic Relations 1961 (the Vienna Convention).

The convention states that when the functions of someone enjoying immunity come to an end such immunity will cease when he leaves the country but "with respect to acts performed by such a person in the exercise of his functions as a member of the mission immunity shall continue to subsist." But the immunity is afforded to his official acts during his tenure in post. Lord Browne Wilkinson continued: In my judgment at common law a former head of state enjoys similar immunities, ratione materiae, once he ceases to be head of state. He too loses immunity ratione personae on ceasing to be head of state ... he can be sued in his private obligations ... As ex-head of state he cannot be sued in respect of acts performed whilst head of state in his public capacity. Thus, at common law, the position of the former ambassador and former head of state appears to be much the same: both enjoy immunity for acts done in performance of their respective functions whilst in office... Accordingly, in my judgment, Senator Pinochet as former head of state enjoys immunity ratione materiae in relation to acts done by him as head of state as part of his official functions as head of state. The question then which has to be answered is whether the alleged organisation of state torture by Senator Pinochet (if proved) would constitute an act committed by Senator Pinochet as part of his official functions as head of state. It is not enough to say that it cannot be part of the functions of the head of state to commit a crime. Actions which are criminal under local law can still have been done officially, and therefore give rise to immunity ratione materiae... Can it be said that the commission of a crime which is an international crime against humanity and jus cogens is an act done in an official capacity on behalf of the state? I believe there to be strong ground for saying that the implementation of torture as defined by the Torture Convention cannot be a state function.

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There was no international tribunal to punish torture and no requirement for its punishment in domestic courts. The Torture Convention showed that a worldwide universal jurisdiction was missing. As the convention required all member states to ban torture, how could it be an official function to do something that international law criminalised? The Torture Convention requires that torture as an international crime can be committed only by someone in an official capacity, who would be entitled to immunity. If this immunity continued universal jurisdiction over torture committed by officials would be meaningless and one of the main provisions of the convention would be frustrated. Chile had signed up to the Torture Convention and thus had agreed that all signatory states should have jurisdiction to try official torture even if committed in Chile. For the above reasons Lord Browne Wilkinson would allow the appeal on the allegation of conspiracy to commit torture and the single act of torture alleged as being committed after 29 September 1988 when Pinochet lost his immunity. Lord Goff dissented on the immunity point but agreed with Lord Slynn in the first House of Lords hearing, and with Lord Browne Wilkinson in excluding some of the crimes as they did not satisfy the double criminality rule. He recalled Lord Hope's conclusions which he had read and then delivered his own: ...Lord Hope, having concluded that, so far as torture is concerned, only charges 2 and 4 (in so far as they apply to the period after 29 September 1988) and charge 30 survive the application of the double criminality point, has nevertheless concluded that the benefit of state immunity is not available to Senator Pinochet in respect of these three charges. He has reached the conclusion that ... Senator Pinochet was party to a conspiracy to carry out systematic, if not widespread, attack on a section of the civil population, Le. to torture those who opposed or might oppose the government, which would constitute a crime against humanity; and the single act of torture alleged in charge 30 shows that an alleged earlier conspiracy to carry out such torture, constituting a crime against humanity, was still alive when that act was perpetrated after 29 September 1988. ... For the above reasons I am of the opinion that by far the greater part of the charges against Senator' Pinochet must be excluded as offending against the double criminality rule; and that in respect of the surviving charges ... Senator Pinochet is entitled to the benefit of state immunity ratione materiae as a former head of state.

Much of Lord Hope's speech had already been quoted and commented upon by Lords Browne Wilkinson and Goff. Only those offences alleged to have been committed after 29 September 1988 became extra-territorial, and the only country in which Pinochet could be put on trial for the full range of offences was Chile. He considered that "the date from which the immunity ratione materiae was lost was 30 October 1988" which was when Chile ratified the Torture Convention, Spain already having ratified it on 21 October 1987, and the United Kingdom on 9 December 1988 following the coming into force of section 134 of the 1988 Act. From this he agreed with the view that Pinochet continued to have immunity until 8 December 1988. In conclusion he said: It follows that I would hold that, when Senator Pinochet has immunity ratione materiae from prosecution for the conspiracy in Spain to murder in Spain ... and for such conspiracies in Spain prior to 8 December ,1988 to commit acts of torture in Spain

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... he has no immunity from prosecution for the charges of torture and of conspiracy to torture which relate to the period after that date ... On this basis only I too would allow the appeal, to the extent necessary to permit the extradition to proceed on the charges of torture and conspiracy to torture relating- to the period after 8 December 1988.

After three detailed judgments had been delivered the furrow had been very thoroughly ploughed and it was becoming increasingly difficult for the remaining law lords to say anything new. Lord Hutton, who was next, agreed with what had been already said and stated his opinion that former heads of state do not enjoy the immunity of serving heads of state. A single act of torture carried out or instigated by an official was enough to constitute a crime against international law. Thus Pinochet was not entitled to immunity in respect of acts of torture and conspiracy to torture alleged to have been committed by him after 29 September 1988, and to this extent he allowed the appeal. Lord Saville agreed. With respect to the states who were party to the Torture Convention he could not see, so far as torture was concerned, how immunity could co-exist with the terms of the convention. He pointed out that, Since 8 December 1988 Chile, Spain and· this country have all been parties to the Torture Convention. So far as these countries at least are concerned it seems to me that from that date these state parties are in agreement with each other that the immunity ratione materiae of their former heads of state cannot be claimed in cases of alleged official torture. ... I would accordingly allow this appeal to the extent necessary to permit the extradition proceedings to continue in respect of the crimes of torture and ... of conspiracy to torture, allegedly committed by Senator Pinochet after 8 December 1988.

Lord Millett also agreed with the conclusions of Lord Browne Wilkinson but differed in one important respect. He reasoned that English courts always had had extra-territorial jurisdiction under customary international law which was part of the common law. Torture as an instrument of state policy had joined piracy, war crimes and crimes against humanity as an international crime of universal jurisdiction by 1973. He explained the difference between the two forms of immunity: Immunity ratione personae is a status immunity. An individual who enjoys its protection does so because of his official status. It enures for his benefit only so long as he holds office ... It is confined to serving heads of state, and heads of diplomatic missions, their families and servants. ...The immunity of a head of state is enjoyed by reason of his special status as the holder of the state's highest office. He is regarded as the personal embodiment of the state itself ... This immunity is not in issue in the present case. Senator Pinochet is not a serving head of state. If he were he could not be extradited. Immunity ratione materiae is very different. This is a subject matter immunity. It operates to prevent the official and governmental acts of one state from being called into question in proceedings before the courts of another, and only incidentally confers immunity on the individual. It is therefore a narrower immunity but is more

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widely available ... It is an immunity from the ... jurisdiction of foreign national courts, but only in respect of governmental or official acts.

Pointing out that the General Assembly of the United Nations had entrusted the principles of international law to the International Law Commission, he argued that it was necessary to distinguish international crimes from domestic offences. The Commission proposed that acts would constitute international crime only if committed at the instigation or toleration of state authorities. This was, in his Lordship's judgment, of crucial importance in relation to the concept of ratione materiae. The official nature of the acts, which is necessary to found a claim to immunity ratione materiae was now to be an essential element which made the acts an international crime. He cited the landmark decision of the Supreme Court of Israel in regard to the trial of Eichmann. He said that the means by which Eichmann had been brought to Israel (abducted from Argentina) had been criticised, but Israel's right to assert jurisdiction over the offences had never been questioned. It is clear that Lord Millett took a much wider view than his fellow judges as to when crimes became subject to international jurisdiction, and he concluded, For my own part, I would allow the appeal in respect of the charges relating to the offences in Spain and to torture and conspiracy to torture, wherever and. whenever carried out. But the majority of your Lordships think otherwise and consider that Senator Pinochet can be extradited only in respect of a very limited number of charges.

The final speech was that ·of Lord Phillips. Agreeing with Lord Browne Wilkinson and Lord Hope he said that international crimes and extra-territorial jurisdiction are new to international law. He went on, I do not believe that state immunity ratione materiae can co-exist with them. The exercise of extra-territorial jurisdiction overrides the principle that onestate will not intervene in the internal affairs of another. It does so because, where international crime is concerned, that principle cannot prevail. An international crime is as offensive, if not more offensive, to the international community when committed under colour of office. Once extra-territorial jurisdiction is established it makes no sense to exclude from it acts done in an official capacity. ...When considering what is alleged, I do not believe that it is correct to attempt to analyse individual elements of this campaign and to identify some as being criminal under international law and others as not constituting international crimes. If Senator Pinochetbehaved as Spain alleged, then the entirety of his conduct was a violation of the norms of international law. He can have no immunity against prosecution for any crime that formed part of that campaign. ... I would allow the appeal in respect of so much of the conduct alleged against Senator Pinochet as constitutes extradition crimes.

The decision of the Lords at the second appeal hearing was virtually unanimous, with only Lords Goff and Millett dissenting in part, that a former head of state of a country that had ratified the Torture Convention had no immunity from extradition from the United Kingdom to a third country for acts of torture committed in his own country while he was head of state after the date when the convention came into effect in all three countries. As acts of torture

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committed extra-territorially did not become punishable under English law until 29 September 1988 when section 134 Criminal Justice Act 1988 came into effect, acts committed before that date were not extraditable. Although the second appeal had effectively the same outcome as the first one which was set aside, the basis for the decision was different as it was restricted to those offences alleged to have been committed after 29 September 1988. The case for extradition was reduced in what The Times called a "move breaking with decades of tradition.,,15 Lord Browne Wilkinson gave a summary of his colleagues' ruling. He said: In today's judgment, six members of the committee hold that, under the ordinary law of extradition, Senator Pinochet cannot be extradited to face charges in relation to torture occurring before September 29, 1988.

He continued that although they had decided that extradition proceedings could go ahead, because of the very substantial reduction in the number of extraditable charges the matter would have to be considered by the secretary of state. Extradition has both a legal and an executive component. The legal point decided gave the executive, in the embodiment of the home secretary, the authority to extradite but did not oblige him to do so. In the event, the home secretary, Jack Straw, after hearing representations concerning Pinochet's health and fitness to stand trial, as well as from Amnesty International who told him he was "obliged to proceed with extradition or to conduct a trial in the United Kingdom,,16, decided not to extradite him to Spain and he was finally allowed to fly back to Chile. The executive act was insignificant; the legal decision had an enormous impact. It has been long established that states and their heads have absolute immunity, but this is not provided for in the Torture Convention or domestic legislation flowing from it and the decision confirmed this. Home Secretary Jack Straw went on record to say that the case would be the "landmark" House of 17 Lords judgment on the sovereign immunity of former heads of state. It means, for the first time, that any head of state who commits crimes against international law in his own country whilst in office, cannot venture outside the borders of his country after he leaves office, without risking arrest, prosecution and punishment for those crimes committed whilst head of state. Historic decision This historic decision by the House of Lords was widely welcomed, and may give pause to tyrannical dictators who are minded to attack members of the populations over whom they rule. Although war crimes and crimes against humanity have been internationally outlawed since the Nuremberg Tribunal following the Second World War, an indictment for such crimes had never been brought against a former head of state. 15

25 March 1999. 'Straw must clear new legal hurdles', Frances Gibb. Amnesty international. Press Release, Washington DC 26 March 1999. 17 The Times. 3 March 2000.

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It has been suggested that the law lords made new law in order to do what they thought was ethically correct. What is not in dispute is that terrible human rights abuses were associated with Pinochet's regime and that "Pinochet" was a landmark case par excellence. As Jack Straw said to Parliament, lilt has established, beyond question, the principle that those who commit human rights abuses in one country cannot assume they are safe elsewhere. That will be the lasting legacy of this case."

Index Amnesty Intemational 109 111123-5132 Atkin Lord 34 38-40 43 67 70 73 75 103 barristers 12 29 ''beyond reasonable doubt" principle vii 34 37-9 4143454750-1 BOAC8191 Boardman 31-2 Bow Street Magistrates' Court 109 Bracton, Henry de 12 "Brides in the Bath" vii 20 23-28 Budd, Bert 42 capital punishment 10 codes of law 9 10 65 Coke, Sir Edward 12 16 18 44-5 common law vii 913-151719336062677788086106115-6128130 consideration 76-779-80 constructive malice 61-4 contract vii 66-73 75-8 80-91 Coram Rege 11 Court of Appeal 13 31 88-9 100 104-7 Court of Chancery 13-15 Court of Common Pleas 1118 Court of Criminal Appeal 20 25 31 37-941 43-4 48505357-9 criminal law 13 59 Cromwell, Oliver 15 Curia Regis 11 death penalty 38 De Banco rolls 11 Denning, Lord 15747678-8092-496-7106-7 Divisional Court 106 108 -9 113115118-23 Donoghue vii 66 74 "double jeopardy" rule 32 DPP 31 38 49 51 56 62 duty of care 66-73 75 economic loss 74 equity vii 13 15 78-80 estoppel76-80 ex officio oath 16 Extradition Act 1989117123126-7 Fortescue, Sir John 12 34 Foster, Sir Michae143-6 "Freezing Injunction" 92 Greene, Lord 100-5 grievous bodily harm 53-8 60-65

habeas corpus 1416109 Hale, Sir Matthew 44-5 49 Henry II 9-10 Herschell, Lord 22-3 26 31 87 High Commission 9 16 "High Trees" case 76 80 Homicide Act 1957 5361 House of Commons 1340 House of Lords vii 1318 26 31-2 38 49 56 65 678097106109-10123132 Human Rights Act 1998 18 immunity 106-10 112-23128-31 Inskip, Sir Thomas 38 intention 54-6 59-60 62-3 65 intemationallaw 106·7110-12130 132-4118 119-20126 Judicature Acts 1873, 1875 15 jury 1117273236-94346-753-6064 82-3 King's Bench 11-2 14-598 Lateran Council (1215) 17

Law Commission 63 65 74 legal profession 11-12 MacMillan, Lord vii 66 71 73-5 Maitland, Frederic 11 Makin's case 20-23 30 malice aforethought 3953 41-5 53 61 63-4 Mansfield Lord 12 Mareva injunction 92-3 Marshall Hall, Sir Edward 25-9 murder vii 20-5 31 33 38-9 46-9 52-3 55-6 58 60-5 108 126 129 natural law 18 negligence vii 57 66-75 negligent statements 73 "neighbour" rule 68 73 75 obiter dicta 66 80 objective test 53 57 6169 Old Bailey 24 52 Oppenheim 112114 ordeal (see trial by ordeal) peineforte et dure 17 Pinochet, Augusto vii 106-33 precedent vii 12 32 presumption of guilt 33-4 374446-8 prima facie case vii 23 25-6 28-93974101 Privy Council 20-1 2732-4 64 104

ratio decidendi 66 Rookes v Barnard 81-91 rule of law 14 sale of goods vii 69 73 Sankey, Viscount 38 41-4 47 49 59 Scrutton LJ 24 73 Selden, John 14 "similar fact" evidence 20-23 26-72932 Smith, George Joseph vii 20 23-30 Smith (Gypsy Jim) vii 52 56 63-4 solicitors 12 24 27 Star Chamber 9 15-6 statutes vii 91719106116 Stevenson vii 66 Straffen, J.T. 30-2 Straw, Jack (Home Secretary) 132-3 subjective test 5357 62 Suppression of Terrorism Act 1978 108-9113 120 Supreme Court of New South Wales 21 tort 73 75 83-91 torture 17107-11113115117-9121-2 126-9 130-2 Torture Convention 115126-32 Trade Disputes Act 1906 81-6 89-91 trade unions vii 81-2 84-5 88-9 90-1 trial by combat 10 trial by ordeal 10 unreasonableness 981 unwritten law 9 Vienna Convention 116-8120 122128 Wednesbury Corporation 98-105

Wergild 10 Western Gazette 3537-840 William the Conqueror 10 Williams, Glanville 48 59 62 Woolmington, Reginald vii 33 35-8 40-3 48 50 51 Year Books 1217

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