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CENTRE FOR APPLIED LINGUISTICS AND SPECIAL LANGUAGES FACHSPRACHENZENTRUM

WELFENGARTEN 1 30167 HANNOVER
















ENGLISH FOR ACADEMIC / SPECIAL PURPOSES SERIES 2005

Cases & Materials: Law








Nils Hoppe
with Eric Lai

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ii
Introduction & Acknowledgements

1he demand or classes in Lnglish at the (entre or Applied Linguistics and Special Languages lSZ, has
increased almost exponentiallv in the past vears. 1he ratio or places aailable and places applied or on
our Legal Lnglish courses in the last semester was approximatelv 1:3.

One reason or this shit in demand is in all likelihood the legal education reorm in Germanv. Under the
new regime students are required to successullv complete a legal LSPLAP course or attend a law lecture
taught in a oreign language. 1he aim o this was to improe the qualitv o graduate output bv requiring
students to embrace international aspects as part o their undergraduate studies. 1he eect is that the
courses on oer at the lSZ are enormouslv oersubscribed.

1he little reader vou are holding represents the irst attempt to proide our students with a comprehensie
package o materials or learning Lnglish or Law. As with anv irst attempt. we are bv no means certain
that it is perect - though we hope that we got as close to it as humanlv possible. lurther editions will
ollow in due course as the material will be updated and student and tutor eedback will be taken into
account.

\e hae taken our material rom a number o sources. each o which is properlv acknowledged in the
corresponding ootnotes. Our gratitude or the production o this little reader goes to the primarv authors
o the material and the German legislators or accommodating reproduction o copvrighted material or
the purposes o teaching.

linallv it is necessarv to highlight the extraordinarv work done bv Lric Lai in the production o this reader.
\ithout his help. determination and reliabilitv vou would now be holding a substantiallv slimmer product.

Gottingen and lannoer. April 2005

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iii
Plagiarism Guidelines
J


In general. plagiarism can be deined as the unacknowledged use o the work o others as i this
were vour own original work.`
In the context o an examination. this amounts to passing o the work o others as vour own to
gain unair adantage.
Such use o unair means will not be tolerated bv the Uniersitv: i detected. the penaltv mav be
seere and mav lead to ailure to obtain vour degree.

1he Scope of Plagiarism
a, Plagiarism mav be due to:
(opving using another person`s language andor ideas as i thev are vour own,:
(ollusion unauthorized collaboration,
b, Methods include:
quoting directlv another person`s language. data or illustrations without clear indication that the
authorship is not vour own and due acknowledgement o the source:
paraphrasing the critical work o others without due acknowledgement-een i vou change some
words or the order o the words. this is still plagiarism i vou are using someone else`s original ideas
and are not properlv acknowledging it:
using ideas taken rom someone else without reerence to the originator:
cutting and pasting rom the Internet to make a pastiche` o online sources:
colluding with another person. including another candidate other than as might be permitted or
joint project work,:
submitting as part o vour own report or dissertation someone else`s work without identiving
clearlv who did the work or example. where research has been contributed bv others to a joint
project,.
c, Plagiarism can occur in respect to all tvpes o sources and all media:
not just text. but also illustrations. musical quotations. computer code etc:
not just text published in books and journals. but also downloaded rom websites or drawn rom
other media:
not just published material but also unpublished works. including lecture handouts and the work o
other students.

1
Source: Uniersitv o (ambridge. Dept. o listorv and Philosophv o Science
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How to Avoid Plagiarism
1he stvlistic conentions or dierent subjects arv and vou should consult vour superisor about the
conentions pertaining in a particular subject area. loweer. the main points are:
\hen presenting the iews and work o others. include in the text an indication o the source o
the material.
e.g. ...a. barpe t]) ba. .borv. .
and gie the ull details o the work quoted in vour bibliographv.
I vou quote text erbatim. place the sentence in inerted commas and gie the appropriate
reerence.
e.g. )be et/ i. ot vece..ity te.. gracetvt tbav tbe ga.ette` t)bovp.ov. ]12. p 1)
and gie the ull details in vour bibliographv as aboe.
I vou wish to set out the work o another at length so that vou can produce a counter-argument.
set the quoted text apart rom vour own text e.g. bv indenting a paragraph, and identiv it bv using
inerted commas and adding a reerence as aboe.
I vou are copving text. keep a note o the author and the reerence as vou go along. with the
copied text. so that vou will not mistakenlv think the material to be vour own work when vou come
back to it in a ew weeks time.
I vou reproduce an illustration or include someone else`s data in a graph include the reerence to
the original work in the legend:
e.g. ttigvre reararv trov !ebb. ]) or ttriavgte. ~ aata trov !ebb. ])
I vou wish to collaborate with another person on vour project. vou should check with vour
superisor whether this might be allowed and then seek |...|.
I vou hae been authorised to work together with another candidate or other researchers. vou
must acknowledge their contribution ullv in vour introductorv section. I there is likelv to be anv
doubt as to who contributed which parts o the work. vou should make this clear in the text
whereer necessarv.
e.g. av gratetvt to .. vitb tor avaty.ivg tbe .oaivv covtevt ot tbe.e .avpte..

Be especiallv careul i cutting and pasting work rom electronic media: do not ail to attribute the work to
its source. I authorship o the electronic source is not gien. ask voursel whether it is worth copving.

1he Golden Rule
1he examiners must be in no doubt as to which parts of your work are your own original work
and which are the rightful property of someone else.
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Contents

Introduction & Acknowledgements........................................................................................................................... ii
Plagiarism Guideline .................................................................................................................................................... iii
(ontents..........................................................................................................................................................................
List o (ases ................................................................................................................................................................iii
List o Statues................................................................................................................................................................ xi

1. Law and Societv: 1he Purpose and lunction o Law......................................................................................... 1
1.1 Introduction....................................................................................................................................................... 1
1.2 Macro lunctions o Law: Law and Orders................................................................................................... 1
1.2.1 Law and Public Order ............................................................................................................................. 2
1.2.2 Law and the Political Order: 1he (onstitutional lunctions o Law............................................... 3
1.2.3 Law and Social Order.............................................................................................................................. 4
1.2.4 Law and the Protection o the Lconomic Order................................................................................ 6
1.2.5 Law and International Order .................................................................................................................
1.2.6 Law and Moral Order.............................................................................................................................. 8
1.3 Other Macro lunctions ................................................................................................................................... 9
1.3.1 1he Resolution o Social Problems.....................................................................................................10
1.3.2 1he Regulation o luman Relationships...........................................................................................10
1.3.3 1he Lducatie or Ideological lunction o Law................................................................................11
1.4 Micro lunctions o Law................................................................................................................................11
1.4.1 Deining the Limits o Acceptable Behaiour...................................................................................12
1.4.2 Deining the (onsequences o (ertain lorms o Behaiour .........................................................13
1.4.3 Deining Processes or the 1ransaction o Business and Other Actiities ..................................13
1.4.4 (reating Regulatorv lrameworks........................................................................................................13
1.4.5 Giing Authoritv to Agents o the State to 1ake Actions against (itizens..................................14
1.4.6 Preenting the Abuse o Power bv Oicials.....................................................................................14
1.4. Giing PowerAuthoritv to Oicials to Assist the Public..............................................................15
1.4.8 Prescribing Procedures or the Use o Law.......................................................................................15
1.5 (onclusion: Law and Societv ........................................................................................................................15

2. Other Jurisdictions..................................................................................................................................................1
2.1 Origin o Administratie Law in South Arica...........................................................................................1
2.2 Origins o American Law..............................................................................................................................1
2.3 Law in Scotland ..............................................................................................................................................18
2.4 1he Deelopment o Lnglish Law in Ireland ............................................................................................19

3. (ontract Law...........................................................................................................................................................21
3.1 Introduction.....................................................................................................................................................21
3.1.1 Deinition o (ontract ..........................................................................................................................21
3.1.2 (ontract and (ontracts.........................................................................................................................21
3.1.3 Agreement ...............................................................................................................................................22
3.1.4 lreedom o (ontract.............................................................................................................................23
3.1.5 Reasons or Lnorcing (ontracts........................................................................................................24
3.1.6 (ommon Law and Lquitv ....................................................................................................................25
3.2 Agreement ........................................................................................................................................................25
3.2.1 Oer and Initation to 1reat ...............................................................................................................26
3.2.2 Acceptance and (ounter-Oer ...........................................................................................................28
3.2.3 (ommunication o Acceptance ...........................................................................................................29
3.2.4 Postal Acceptance..................................................................................................................................30
3.2.5 Method o Acceptance Prescribed bv Oer......................................................................................32
3.2.6 Silence as Acceptance............................................................................................................................33
3.2. Acceptance Requires Knowledge o Oer........................................................................................33
3.2.8 Unilateral (ontracts...............................................................................................................................34
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3.2.9 1ermination o Oer ............................................................................................................................35
3.2.10 (ases in which there is No Identiiable Oer and Acceptance ...................................................38
3.2.11 Vague or Incomplete Agreements ....................................................................................................38
3.2.12 (onditional Agreements .....................................................................................................................40

4. 1ort............................................................................................................................................................................42
4.1 Introduction.....................................................................................................................................................42
4.1.1 \hat is a 1ort.........................................................................................................................................42
4.1.2 1he (lassiication o 1orts...................................................................................................................44
4.2 Negligence: Introduction...............................................................................................................................45
4.2.1 Origins .....................................................................................................................................................45
4.2.2 1he Llements o the 1ort o Negligence...........................................................................................46
4.2.3 Negligence: A Deeloping 1ort...........................................................................................................4
4.2.4 1he Objecties o Negligence Law.....................................................................................................49
4.3 1he Dutv o (are (oncept............................................................................................................................52
4.3.1 1he Nature o the Dutv o (are (oncept..........................................................................................52
4.3.2 1esting the Lxistence o a Dutv o (are............................................................................................52
4.3.3 Caparo and the Retreat rom .vv. .......................................................................................................54
4.3.4 lorseeabilitv............................................................................................................................................55
4.3.5 Proximitv .................................................................................................................................................5
4.3.6 lairness. Justice and Reasonableness..................................................................................................59
4.4 Intererence with the Person and Personal Propertv................................................................................63
4.4.1 Oeriew.................................................................................................................................................63
4.4.2 lault-based and Strict Liabilitv ............................................................................................................65
4.4.3 (ompensation or Personal Injuries ...................................................................................................66
4.4.4 1he Mixed Svstem o Accident (ompensation ................................................................................66
4.4.5 1he Pearson (ommission Proposals..................................................................................................68
4.4.6 (omprehensie (ompensation Schemes...........................................................................................0
4.5 Intererence with Land: Introduction..........................................................................................................1
4.5.1 Propertv. 1ort and (rime .....................................................................................................................1
4.5.2 1respass. Nuisance and Negligence....................................................................................................2
4.6 Deamation ......................................................................................................................................................3
4.6.1 Intererence with Personalitv Generallv.............................................................................................3
4.6.2 1he Law o Deamation .......................................................................................................................
4.6.3 1he Statement must be Deamatorv...................................................................................................
4.6.4 1he Statement must be published to a 1hird Person ......................................................................81
4.6.5 Reerence to the Plainti......................................................................................................................83

5. (riminal Law............................................................................................................................................................85
5.1 1he General Principles o (riminal Responsibilitv ...................................................................................85
5.1.1 1he Nature o a (rime..........................................................................................................................85
5.1.2 (riminal Responsibilitv .........................................................................................................................85
5.1.3 General Lxemptions rom (riminal Responsibilitv.........................................................................88
5.1.4 Incapacitv ................................................................................................................................................91
5.1.5 1he (lassiication o (rimes ................................................................................................................95
5.1.6 1he Parties to a (rime...........................................................................................................................95
5.1. Attempts..................................................................................................................................................9
5.1.8 Limitation o 1ime.................................................................................................................................98
5.2 Speciic (rimes................................................................................................................................................98
5.2.1 Oences against the Public Interest ...................................................................................................99
5.2.1.1 (onspiracv......................................................................................................................................99
5.2.2 Oences against the Person...............................................................................................................101
5.2.2.1 lomicide......................................................................................................................................101
5.2.2.2 Assault and Batterv.....................................................................................................................106
5.2.2.3 Rape...............................................................................................................................................10
5.2.2.4 Bigamv ..........................................................................................................................................108
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5.2.3 Oences in Relation to Propertv ......................................................................................................109
5.2.3.1 1het and Allied Oences.........................................................................................................109
5.2.3.2 (riminal Damage ........................................................................................................................118
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List of Cases

Adams Lindsell 1818, .......................................................................................................................................................................................... 30
Adomako |1994| ......................................................................................................................................................................................................105
A-G`s Reerence No 1 o 195, |195| ............................................................................................................................................................... 9
A-G`s Reerence No 2 o 1992, |1994| ............................................................................................................................................................... 93
Alcock . (hie (onstable o South \orkshire Police |1992| .......................................................................................................................... 52
Allied Marine 1ransport ltd Vale do Rio Doce Naegacao SA. 1he Leonidas D |1985| ................................................................ 22. 26
Alpenstow Ltd Regalian Properties plc |1985|................................................................................................................................................. 40
Andr et (ie SA Marine 1ransocean Ltd. 1he Splendid Sun |1981|........................................................................................................... 26
Anglo-Russian Merchant 1raders |191|.............................................................................................................................................................. 41
Anns . London Borough o Merton |198| ....................................................................................................................................................... 53
Argvll . Argvll |196|............................................................................................................................................................................................... 4
Bentall. lorslev and Baldrv Vicarv |1931| ........................................................................................................................................................ 34
Berko . Burchill |1996| ................................................................................................................................................................................. . 8
Blackpool and lvlde Aero (lub Ltd Blackpool Borough (ouncil |1990|.................................................................................................. 2
Bourhill . \oung |1943|.......................................................................................................................................................................................... 56
Brinkibon Ltd Stahag Stahl und Stahlwarenhandelsgesellschat mbl |1983| .............................................................................. 29. 31. 32
British Road Serices A V (rutchlev Ltd |196| ............................................................................................................................................. 29
British Steel (orpn (leeland Bridge & Lngineering (o Ltd |1984| ................................................................................................... 39. 40
Brogden Metropolitan Rlv 18,....................................................................................................................................................................... 29
Bruner Moore |1904|............................................................................................................................................................................................. 30
Butler Machine 1ool (o Ltd Lx-(ell-O (orpn Lngland, Ltd |199| ....................................................................................................... 29
Bvrne & (o Leon Van 1ienhoen 1880,.................................................................................................................................................. 31. 35
Bvrne . Deane |193| .............................................................................................................................................................................................. 8
(aparo Industries . Dickman |1990| ...................................................................................................................................................... 52. 54. 61
(arlill (arbolic Smoke Ball (o |1893| ............................................................................................................................................................... 2
(arson . lere`s Johnnv Portable 1oilets Inc 1983, ........................................................................................................................................ 6
(assidv . Dailv Mirror Newspapers Ltd |1929| ................................................................................................................................................. 80
(halmers . Pavne 1835, ........................................................................................................................................................................................ 9
(harleston . News Group Newspapers Ltd |1995| .......................................................................................................................................... 9
(hillingworth Lsche |1924| ................................................................................................................................................................................. 40
(hristopher LL, & (o Lssig |1948| ................................................................................................................................................................. 34
(larke Larl o Dunraen and Mount-Larl. 1he Satanita 189, .................................................................................................................. 38
(ollin Duke o \estminster |1985| ................................................................................................................................................................... 26
(oulthard (lementson 189, ............................................................................................................................................................................. 3
(ourtnev and lairbairn Ltd 1olaini Bros lotels, Ltd |195|............................................................................................................... 38. 39
Daulia Ltd lour Millbank Nominees Ltd |198|............................................................................................................................................. 34
Daie . New Merton Board Mills Ltd |1959|..................................................................................................................................................... 61
Denton Great Northern Rlv (o 1856,............................................................................................................................................................. 28
Dickinson Dodds 186, ...................................................................................................................................................................................... 35
Didvmi (orpn Atlantic Lines and Naigation (o Inc |1988| ....................................................................................................................... 39
Dillon Baltic Shipping (o. 1he Mikhail Lermonto |1991| .......................................................................................................................... 28
Domb Isaz |1980| .................................................................................................................................................................................................. 40
Donoghue . Steenson |1932| .......................................................................................................................................................... 45. 46. 53. 64
DPP Morgan |195| .............................................................................................................................................................................................. 86
DPP Stonehouse |19|......................................................................................................................................................................................115
Dunlop liggins 1848, ......................................................................................................................................................................................... 31
Lagle |19| ................................................................................................................................................................................................................ 28
Lntores Ltd Miles lar Last (orpn |1955| ................................................................................................................................................. 29. 31
Lrrington Lrrington and \oods |1952|............................................................................................................................................................ 34
Lsso Petroleum Ltd (ustoms and Lxcise (omrs |196|............................................................................................................................... 26
Lxxcomm Ltd Guan Guan Shipping Pte, Ltd. 1he Golden Bear |198| ................................................................................................. 22
lairline Shipping (orpn Adamson |195| ........................................................................................................................................................ 33
lelthouse Bindlv 1862,........................................................................................................................................................................................ 33
lenwick Macdonald lraser & (o Ltd 1904,................................................................................................................................................... 2
linancings Ltd Stimson 1962, ........................................................................................................................................................................... 3
lirst Sport Ltd Barclavs Bank plc |1993| .......................................................................................................................................................... 30
lolev (lassique (oaches |1934| .......................................................................................................................................................................... 39
lood (orpn o India Antclizo Shipping (orpn |1998|.................................................................................................................................. 26
G Percv 1rentham Ltd Archital Luxer Ltd |1993| ........................................................................................................................................ 40
G Scammell & Nephew Ltd Ouston |1941|..................................................................................................................................................... 39
Gebr Van \eelde Scheepaartkantor BV (ia Naiera Sea Orient SA |198| .......................................................................................... 26
Gibson Manchester (itv (ouncil |199| .............................................................................................................................................. 26. 36. 38
Gladvs No 2, |1994| ................................................................................................................................................................................................ 40
Goldman . largrae |196| .................................................................................................................................................................................. 2
Greater Nottingham (o-operatie Societv Ltd . (ementation Piling and loundations Ltd |1989| ...................................................... 62
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larris Nickerson 183, ....................................................................................................................................................................................... 2
larela Inestments Ltd Roval 1rust (o o (anada (I, Ltd |1986|.................................................................................................. 2. 34
ledlev Bvrne & (o . leller and Partners |1964| ............................................................................................................................................. 58
lenthorn lraser |1892| ................................................................................................................................................................................. 30. 31
lilas & (o Ltd Arcos Ltd 1932, ....................................................................................................................................................................... 38
lill . (hie (onstable o \est \orkshire |1989| .............................................................................................................................................. 62
lolwell Securities Ltd lughes |194| ............................................................................................................................................................... 31
lome Oice . Dorset \acht (o Ltd |190|...................................................................................................................................................... 62
lousehold lire and (arriage Accident Insurance Grant 189,.................................................................................................................. 31
lulton . Jones |1910| ...................................................................................................................................................................................... 8. 83
lussev lornev-Pavne 189, .............................................................................................................................................................................. 29
luth . luth |1914-15| ........................................................................................................................................................................................... 81
lvde \rench 1840, ............................................................................................................................................................................................. 36
John Mc(ann & (o Pow |194|......................................................................................................................................................................... 34
Jovce . Sengupta |1993| .......................................................................................................................................................................................... 4
Junior Books . Veitchi (o Ltd |1983| ................................................................................................................................................................. 54
Khorasandjian . Bush |1993|................................................................................................................................................................................. 5
Knupper . London Lxpress Newspapers |1944|............................................................................................................................................. 84
Lamb . (amden LB( |1981| ................................................................................................................................................................................. 48
Lark Outhwaite |1991| .......................................................................................................................................................................................... 28
Lawrence Metropolitan Police (omr |192| ..................................................................................................................................................111
Leigh & Sillian Ltd . Aliakmon Shipping (o Ltd |1986|............................................................................................................................... 54
Letang . (ooper |1965| .......................................................................................................................................................................................... 64
Lewis . Dailv 1elegraph |1963| ............................................................................................................................................................................. 80
Llovds larper 1880, ............................................................................................................................................................................................ 35
Lombard 1ricitv linance Ltd Paton |1989|...................................................................................................................................................... 40
Luxor Lastbourne, Ltd (ooper |1941| ............................................................................................................................................................ 34
M`Naghten`s (ase 1843,......................................................................................................................................................................................... 91
Mackav Dick 1881,............................................................................................................................................................................................... 41
MacRobertson Miller Airline Serices (om o State 1axation o State o \estern Australia 195, .................................................. 28
Malpass. Re. Llovds Bank plc Malpass |1985|.................................................................................................................................................. 40
Manchester Diocesan (ouncil or Lducation (ommercial and General Inestments Ltd |190|........................................................ 33
Marc Rich and (o AG . Bishop Rock Marine (o Ltd. 1he Nicholas l |1996| ................................................................................. 58. 60
Mav and Butcher R |1934| ................................................................................................................................................................................... 39
McLoughlin . O`Brian |1983|......................................................................................................................................................................... 54. 59
Memphis Deelopment loundation . lactors Ltc. Ltd 1980, ..................................................................................................................... 6
Moran Uniersitv (ollege Salord No 2, |1993|............................................................................................................................................. 26
Morgan . Launchberrv |193| ............................................................................................................................................................................... 61
Morgan . Odhams Press Ltd |191| .................................................................................................................................................................... 83
Nagel leilden |1996| ............................................................................................................................................................................................. 23
New Zealand Shipping (o Ltd A M Satterthwaite & (o Ltd |195| .......................................................................................................... 38
Newstead . London Lxpress Newspaper Ltd |1940|....................................................................................................................................... 84
Oord Daies 1862, ............................................................................................................................................................................................ 35
Pagnan SpA leed Products Ltd |198| ................................................................................................................................................ 38. 39. 40
Pagnan SpA 1radax Ocean 1ransportation SA |198| .................................................................................................................................. 41
Palsgra . Long Island Rail Road 1928, ............................................................................................................................................................. 56
Partridge (rittenden |1968|.................................................................................................................................................................................. 26
Peabodv Donation lund . Parkinson |1985| ..................................................................................................................................................... 54
Percial L(( Asvlums and Mental Deiciencv (ommittee 1918, .............................................................................................................. 2
Pharmaceutical Societv o Great Britain Boots (ash (hemists |1953| ....................................................................................................... 26
Potter Sanders 1846, ............................................................................................................................................................................................ 31
Pvm (ampbell 1856,............................................................................................................................................................................................ 41
R Dudlev and Stephens 1884,............................................................................................................................................................................ 91
R libbert 1869, .................................................................................................................................................................................................... 89
R lussev 1924, ..................................................................................................................................................................................................... 90
R Jordan 1956, ....................................................................................................................................................................................................106
R Malcherek |1981|..............................................................................................................................................................................................106
R Miller |195| ........................................................................................................................................................................................................ 89
R Prince 185,....................................................................................................................................................................................................... 89
R 1olson 1889,....................................................................................................................................................................................................109
R \arwickshire (ountv. ex p Johnson |1993| ................................................................................................................................................. 2
Rasanjan Pistachio Producers (o-operatie Bank Leumi UK, plc |1993| .............................................................................................. 33
Ramsgate Victoria lotel (o Ltd Monteiore 1866, ...................................................................................................................................... 36
Rich Marc, & (o AG Bishop Rock Marine (o Ltd. Bethermarine (o Ltd and Nippon Kaiji Kvoki. 1he Nicholas l |1996|.... 62
Roberts lavward |1828| ....................................................................................................................................................................................... 33
Rossiter Miller 188, ............................................................................................................................................................................................ 40
Rowling . 1akaro Properties Ltd |1988| ...................................................................................................................................................... 54. 61
Rust Abbev Lie Assurance (o |199|............................................................................................................................................................... 33
Rvlands . lletcher 1866, ................................................................................................................................................................................ 65. 2
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Shuev US 92 Us 3 185,.................................................................................................................................................................................... 36
Sim . Stretch |1936|.................................................................................................................................................................................................
Slipper . British Broadcasting (orporation |1991| ........................................................................................................................................... 83
Smith . Littlewoods Organisation Ltd |198| ............................................................................................................................................. 52. 54
South Paciic Manuacturing (o . New Zealand Securitv (onsultants & Inestigations Ltd |1992|..................................................... 5
Spencer larding 180, ........................................................................................................................................................................................ 2
Spiro Lintern |193| .............................................................................................................................................................................................. 33
Spring . Guardian Assurance plc |1995| ............................................................................................................................................................. 4
Stern . Piper |1996| ................................................................................................................................................................................................. 82
Steenson. Jaques & (o McLean 1880,........................................................................................................................................................... 36
Sudbrook 1rading Lstate Ltd Lggleton |1983|................................................................................................................................................ 40
Sutherland Shire (ouncil . levman 1985,........................................................................................................................................................ 58
Sweet Parslev |190| .............................................................................................................................................................................................. 88
1ankrederei Ahrenkeil Gmbl lrahuil SA. 1he Multitank lolsatia |1988|............................................................................................... 33
1enax SS (o Ltd Reinante 1ransoceania Naegacion SA. 1he Brimnes 195, ...................................................................................... 35
1heaker . Richardson |1962| ................................................................................................................................................................................. 81
1hornton Shoe Lane Parking Ltd |191| ................................................................................................................................................... 2. 28
1inn loman & (o 183,.......................................................................................................................................................................... 28. 34
1ollev . lrv |1931| ................................................................................................................................................................................................... 5
Ultramares (orpn . 1ouche 1931,...................................................................................................................................................................... 60
United Scientiic loldings Ltd. . Burnlev Borough (ouncil.......................................................................................................................... 44
Vitol SA Norel Ltd. 1he Santa (lara |1993| ................................................................................................................................................... 30
Vizetellv . Mudies` Select Librarv Ltd |1900| ..................................................................................................................................................... 82
Voest Alpine Intertrading Gmbl (heron International Oil (o Ltd |198| ........................................................................................... 39
\alord Miles |1992| ............................................................................................................................................................................................. 39
\ard . McMaster |1988| ........................................................................................................................................................................................ 59
\arlow larrison 1859, ....................................................................................................................................................................................... 2
\estern Lletric ltd \elsh Deelopment Agencv |1983| ............................................................................................................................... 32
\hite . Jones |1995|................................................................................................................................................................................................ 60
\ilkie London Passenger 1ransport Board |194|......................................................................................................................................... 28
\ilkinson . Downton |189| ................................................................................................................................................................................ 5
\illiam Lacev lounslow, Ltd Dais |195| ................................................................................................................................................... 2
\illiams . lolland 1833, ...................................................................................................................................................................................... 64
\ilson Paal, & (o AS Partenreederei lannah Blumenthal |1983| .................................................................................................. 22. 26
\oolmington DPP |1935| ................................................................................................................................................................................... 8
X Minors, . Bedordshire (ountv (ouncil |1995|.................................................................................................................................... 60. 63
X . Bedordshire (ountv (ouncil |1995|............................................................................................................................................................ 62

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List of Statues

Abortion Act 196 ..................................................................................................................................................................................................102
Administration o Justice Act 1982 ....................................................................................................................................................................... 68
Animals Act 191...................................................................................................................................................................................................... 64
Arbitration Act 1950................................................................................................................................................................................................. 26
Bankruptcv Act 1914................................................................................................................................................................................................ 88
(hildren and \oung Persons Act 1933 ................................................................................................................................................................ 4
(ompanies Act 1985................................................................................................................................................................................................. 3
(ompanies Act 1989................................................................................................................................................................................................. 3
(riminal Attempts Act 1981 ................................................................................................................................................................................... 9
(riminal Damage Act 191...................................................................................................................................................................................118
(riminal Lidence Act 1984 ................................................................................................................................................................................... 14
(riminal Injuries (ompensation Scheme............................................................................................................................................................. 50
(riminal Justice Act 196 .........................................................................................................................................................................86. 8. 105
(riminal Justice Act 1991 ......................................................................................................................................................................................114
(riminal Justice Act 1995 ........................................................................................................................................................................................ 50
(riminal Justice and Public Order Act 1994......................................................................................................................................................10
(riminal Law Act 196 (LA,................................................................................................................................................................................ 95
(riminal Law Act 19 ................................................................................................................................................................................... 98. 100
(riminal Procedure Insanitv and Unitness to Plead, Act 1991..................................................................................................................... 92
(riminal Procedure Insanitv, Act 1964........................................................................................................................................................ 92. 93
Deamation Act 1996 ............................................................................................................................................................................................... 82
Lnironmental Protection Act 1990 ..................................................................................................................................................................... 2
Luropean (ommunities Act 192 ........................................................................................................................................................................... 3
Luropean (onention on luman Rights .............................................................................................................................................................. 9
lamilv Law Reorm Act 1969................................................................................................................................................................................. 94
lirearms Act 1968..................................................................................................................................................................................................... 8
lox`s Libel Act 192................................................................................................................................................................................................. 8
Genea (onention....................................................................................................................................................................................................
lomicide Act 195................................................................................................................................................................................. 92. 103. 104
luman Rights Act .................................................................................................................................................................................................... 11
luman Rights Act 1998 ............................................................................................................................................................................................ 3
Inant Lie Preseration, Act 1929.....................................................................................................................................................................101
Inanticide Act 1938 ...............................................................................................................................................................................................106
Judicature Act 183............................................................................................................................................................................................ 43. 45
Larcenv Act. 1916....................................................................................................................................................................................................111
Law Reorm \ear and a Dav Rule, Act 1996...................................................................................................................................................103
Legal Serices Act 1990 ........................................................................................................................................................................................... 26
Licensing Act 1964.................................................................................................................................................................................................... 88
Local Goernment Bill 2000..................................................................................................................................................................................... 4
Malicious Damage Act 1861 .................................................................................................................................................................................118
Mental lealth Act 1983........................................................................................................................................................................................... 91
Oences Against the Person Act 1861.......................................................................................................................................89. 10. 108. 109
Police Propertv, Act 189 ....................................................................................................................................................................................11
Political Parties. Llections and Reerendums Bill 2000....................................................................................................................................... 4
Post Oice Act 1969................................................................................................................................................................................................ 5
Powers o (riminal (ourts Act 193 .................................................................................................................................................................... 42
Protection rom larassment Act 199................................................................................................................................................................. 5
Race Relations Act 196 .......................................................................................................................................................................................... 23
Reorm o the louse o Lords................................................................................................................................................................................. 3
Resale Prices Act 196 ............................................................................................................................................................................................. 23
Road 1raic Act 1988.............................................................................................................................................................................................. 94
Sales o Goods Act 199 .................................................................................................................................................................................. 38. 40
Scotland Act 1998 ....................................................................................................................................................................................................... 3
Sex Discrimination Act 195 .................................................................................................................................................................................. 23
Sexual Oences Amendment, Act 196...........................................................................................................................................................10
Sexual Oences Act 1956......................................................................................................................................................................................10
Sexual Oences Act 196......................................................................................................................................................................................10
Sexual Oences Act 1993........................................................................................................................................................................................ 94
Social Securitv Act 1989........................................................................................................................................................................................... 68
Suicide Act 1961............................................................................................................................................................................................. 104. 105
Supplv o Goods and Serices Act 1982 .............................................................................................................................................................. 38
1het Act 1968.........................................................................................................................................................................................................111
1het Act 198................................................................................................................................................................................................ 114. 116
1rade Union and Labour Relations (onsolidation, Act 1992........................................................................................................................ 23
1rade Union Reorm and Lmplovment Rights Act 1993................................................................................................................................. 23
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United Nations (harter..............................................................................................................................................................................................
\ales Act 1998 ............................................................................................................................................................................................................ 3

J. Law and Society: 1he Purpose and Iunctions of Law
2


J.J Introduction
One purpose o this |chapter| is to enable the reader to understand the traveror/ within which rules o law
are made and utilized. not to analvze speciic rules o law. or example what is the legal deinition o
murder` or when is a contract legallv binding`. Nonetheless. it will be hard to make anv sense o that
ramework without at least some indication o what the rules o law are to which the ramework o the
Lnglish legal svstem applies and. in particular. what the .ociat pvrpo.e or .ociat tvvctiov o those rules o law is.
In considering this. a distinction will be drawn between what mav be described as the macro and the
micro unctions o law. 1he macro unctions o law mav be deined as those which relate to general issues
about the role law plavs in the running and ordering o societv. 1he micro unctionswhich derie rom
those macro unctionsrelate to the more speciic uses to which law is put. 1he distinction should
become clearer as the discussion proceeds.


J.2 1he Macro Iunctions of Law: Law and Orders
I the question is posed: what is the role o law in societv` a common response would be to maintain
order`. Much public debate and political rhetoric makes the link between law` and order`. Such a response
disguises considerable ambiguitv about the concept o order. 1here is in act a arietv o orders in relation
to which the law mav be plaving a role: or example
public order`:
political order`:
social order`:
economic order`:
international order`: or
moral order`.

In addition. the interactions o law with each o these orders are extremelv complex. Onlv a brie and
preliminarv discussion o these issues is oered here.

1o start. two general points mav be made. lirst. the extent to which law is able to shape these dierent
orders is not unconstrained. but is itsel shaped bv the political and other orces which shape the societv in
which law unctions. Second. and related to the irst point. law is not some neutral` orce which
contributes to the organization o societv. but which is in some peculiar wav detached rom that societv.
1he unctions o law in anv gien societv cannot be understood without an understanding o the political.

2
Partington. M.. vtroavctiov to tbe vgti.b egat y.tev. Oxord Uniersitv Press. New \ork. 2000. pp. 11-2.
^it. oppe

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social and economic ideologies that underpin that societv and which proide the ramework within which
law unctions.

J.2.J Law and Public Order
Manv would argue that apossiblv theprimarv unction o law is to assist in the preseration o public
order. 1he maintenance o public order is not exclusielv a task or the law: manv other actors such as
pressure rom amilv. riends. or work colleagues also plav an important part. Nonetheless. the act that
law sets the boundaries o acceptable behaiour and prescribes sanctions or breaches o those boundaries
which is in essence the unction o criminal law, does make a signiicant contribution to the preseration
o public order.

1he preseration o public order. howeer. immediatelv raises another and not necessarilv consistent
unction o law: the protectiov ot cirit tibertie. ava bvvav rigbt.. It is acknowledged that an important
component in the ordering o a democratic societv is the abilitv o people to argue reelv about their
belies and the reedom to dissent. Limits mav be set to the reedom o indiidual s to adance unpopular
iews. or example. those that are obscene. or deamatorv. or which incite racial hatred. Neertheless it is
accepted that. within those limits. reedoms o speech and thought muss be protected bv law.

British constitutional arrangements hae not. in the past. gone as ar as. or example. the proisions
relating to the reedoms which are ormallv enshrined in the constitution o the United States o America.
Len so there are long-standing principles o Lnglish law which seek to allow people to indicate dissent.
or example. bv demonstrating peaceullv. or engaging in other public actiities such as taking part in
political marches. 1he coming into orce. in October 2000. o the luman Rights Act 1998 will lead to
new interest in the deelopment o human rights as a undamental part o Lnglish law. Protection o
human rights and ciil liberties can thereore be identiied as another unction o the law. and a unction
not alwavs consistent with the desire to presere public order. 1here will be occasions when the
preseration o public order mav result in the imposition o restrictions on ciil liberties. (onerselv. the
protection o ciil libertv can on occasion result in some relaxation o controls oer public order.

In highlv repressie societies. the unction o law in presering public order mav hae the eect o
destroving ciil liberties and other undamental reedoms. In more tolerant societies where dissent is
permitted. there will alwavs be a sharp debate about the extent to which law`s unction is to presere
public order. as opposed to protect other rights and reedoms. iberty
3
and other pressure groups mav not
alwavs persuade goernments to change their minds on proposals relating to the deelopment o law. But
their abilitv to challenge and criticize Ministers is undamental to ensuring that goernments do not step
too ar oer the boundarv o what is politicallv acceptable. 1he law`s unction in relation to the

3
1he current name or the National (ouncil or (iil Liberties.
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maintenance o public order is. thus. highlv contingent upon the nature o the societv in which law
operates.

J.2.2 Law and the Political Order: 1he Constitutional Iunctions of Law
Another o the underlving unctions o law is to underpin the political order o the countrv-the
constitutional unction o law. In this respect. the United Kingdom is something o an odditv in the world
communitv. as it is one o the erv ew countries that does not operate under a written constitution. 1here
are indeed manv important practices within the British (onstitution that arise rom the operation o
practice and conention`. rather than rom identiiable rules o law. |.| Some o the most important
aspects about the wav the svstem o goernment is organized in Lngland all outside the scope o law
altogether. 1heir basis is ound more in political than in legal theorv. In iew o this. it might be thought
that support or constitutional arrangements should not be regarded as one o the macro unctions o law.

loweer. despite the lack o a written constitution in the UK. it is appropriate to include this topic under
the macro head. It emphasizes the point that. although there is no written constitution in the United
Kingdom. there is still a great deal o undamental law which regulates the wav in which our political
svstem operates. Indeed as a result o manv o the changes being introduced to our constitutional
arrangements bv the present Labour Goernment. it is arguable that. whateer mav hae been the correct
analvsis in the past. we are currentlv witnessing the birth o a legallv based constitutional settlement. 1here
are so manv aspects o our constitutional arrangements that are now either enshrined in law or shortlv will
be. 1o gie some examples:
British membership o the Luropean Union. recognized in such undamental statutes as the
Luropean (ommunities Act 192 and later amendment acts passed to take account o changes to
the Luropean 1reaties has. among other things. set limits to the legislatie power. or soereigntv. o
the British Parliament.
1he Scotland Act 1998 and the \ales Act 1998 hae both proided or deolution o powers rom
the goernment in London to. respectielv. the Scottish Parliament and the \elsh Assemblv. 1his
proides a new legal ramework or the regulation o the relationship between central and regional
goernments.
1he enactment o the luman Rights Act 1998 will prooundlv aect the practice o the
goernment. as legislation will hae to be compliant with the proisions o the Act. and thus the
Luropean (onention on luman Rights which is incorporated in that Act.
Reorm o the louse o Lordsin progress as this book is being writtenis also being achieed
bv erv important legislation which will orm another part o the new British (onstitutional
arrangements.
Laws relating to oicial secrecv on the one hand and reedom o inormation on the other
determine the extent to which goernments can operate openlv or in secret. Again there is the
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4
prospect o major new legislation in this area which will hae a proound eect on the wav
goernment works. 1his is another example o the use o law to support out constitutional
arrangement.
Manv other examples might be gien: the detailed law relating to the running o elections. or the
law regulating the relationship between central and local goernment.
4


In the light o this rapidlv growing bodv o law. the argument is now being heard that the British should
take the last step and adopt a written constitution. which would codiv into a single legislatie measure all
these constitutional proisions.
5
It is ironic that one o the legacies let bv the British in the ast majoritv
o its ormer colonies was a written constitution. when no such document exists in the United Kingdom
itsel.

J.2.3 Law and Social Order
Law also contributes to the preseration o the countrv`s social order. Deining the nature o social order
is extremelv complex and an issue on which there are wide dierences o opinion. loweer. it is clear that
in the United Kingdom. as in manv other countries in the \estern democratic tradition. there are
substantial dierences between indiiduals that mav depend on dierences o abilitv. or dierences o
income or wealth. or dierences o birth or class. 1hese dierences are relected in manv rules o law. in
particular those that deine concepts o propertv and contract. 1he present social order and the law that
supports that social order has the eect o protecting the rights o those with propertv and the economic
power to enter and enorce contractual arrangements. Much o the criminal law also seeks to protect
rights o propertv. On this analvsis. the relationship between law and social order mav be seen as erv
conseratie. in the sense that it seeks to consere current social arrangements.

loweer. as with the role o law in relation to public order. there are other wavs o thinking about the
relationships between law and social order. Manv would assert that a undamental purpose o law todav is
to promote a more dvnamic social order. designed to ensure that societv is not locked into structures
which sustain inequalitv. but rather promotes a societv based on principles o equalitv and the preention
o social exclusion.

1he bases or attacking inequalitv are the subject o ierce debate. Some argue that equalitv` can onlv be
achieed i there is a complete leelling o the dierences between peopleso that. or example. eervone
in emplovment receies more or less equal pav. that there should be equalitv in the amounts o wealth
capable o being held bv indiiduals. and so on. Others take the iew that equalitv in this sense is neither

4
1hese are both topics on which there are currentlv proposals beore Parliament: the Political Parties. Llections and
Reerendums Bill 2000: and the Local Goernment Bill 2000.
5
1he (onstitutional Unit at Uniersitv (ollege London is taking a lead in this debate.
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5
the right nor sensible wav to promote a new social order. 1hev argue that the ocus should be on eqvatity ot
opportvvity. or example in the proision o education. or health care. or work opportunities.

Manv rules o law now exist which hae as their speciic objectie the promotion o equalitv o
opportunitv. Both within the United Kingdom and more broadlv in the Luropean Union. there is law
designed to combat the impacts o discrimination based on grounds o gender. ethnicitv and race. or
disabilitv. 1his is drien not bv simplistic notions o political correctness` but bv the erv practical belie
that the collectie good o nations will be enhanced bv ensuring that all citizens are in a position to plav a
ull part in the economic and social lie o those nations. 1o gie a simple example. i women are excluded
rom the workorce. 50 per cent o the aailable talent is therebv excluded.

In addition to speciic measures o anti-discrimination legislation. a great deal o political debate and
public policv making is directed to deising social. welare. and educational policies which seek to assist in
the creation o a new social order. Law gies legitimacv to those policies. 1here is nothing new about this.
Since the deelopment o the concept o the welare State in the middle o the nineteenth centurv. the
argument has been heard that it is right that goernments should seek. to arving degrees. to promote
equalitv. 1he law has clearlv had and will continue to hae a part to plav in these deelopments.

1he mere act that policies are deeloped and enshrined in legal Acts o Parliament does not mean that a
new social order is therebv automaticallv created. 1he eidence is that in modern Britain. there remain
erv marked inequalities-whether based on class. education. emplovment. health. or other lie
opportunities. \hile there mav be aspirations towards equalitv. the social realitv is that equalitv-howeer
deined-has not vet been ullv realized.

1he claim that law has a role in the promotion o equalitv is one that is requentlv made. and can thus be
included as one o the macro unctions o law. loweer the part plaved bv law in maintaining the existing
social order mav be said to be in conlict with that unction. 1his leads some to argue that law has another.
more political unction. o supporting the status quo against anv other wav o organizing the social order.
As with the tension between public order and human rights. there are tensions between the role o law in
the preseration o the social order and its role in the promotion o equalitv.

Similarlv. claims are made that a unction o law is to promote social justice. 1he extent to which law and
the legal svstem. bv itsel. can delier social justice is limited. Social justice is more a political concept than
a legal one. Law mav be able to support steps taken to achiee social justice and thus promote a new social
order: but it would be unrealistic to claim that law can achiee this in isolation rom other non-legal
actors which go to the oundations o modern societv.

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6
Len i the abilitv o law directlv to oster social justice or equalitv is limited. there is neertheless an
important claim or law that it does hae a role to plav in protecting the weak against the powerul. 1his
has become a erv important unction or law in the twentieth centurv as notions o the welare state hae
deeloped. not just in Lngland but across the deeloped world.
6


J.2.4 Law and the Protection of the Lconomic Order
1he relationship between law and the economic order raises similar matters to those considered in the
relationship o law and the social order. 1he dominant economic philosophv in the United Kingdom.
indeed throughout the \estern \orld. is market capitalism.

lere. a erv important unction o law has


been and is the recognition o rights in priate propertv. whether in land or other orms o securitv. It is in
law that deinitions o the ownership rights in propertv are to be ound. 1he law proides procedures or
the transer o propertv rom one person to another. 1he law enables dierent propertv rights to coexist
in the same piece o propertv. And the law proides mechanisms or the enorcement o those rights.
1here is little doubt that the notions o propertv deeloped in the law hae. historicallv. assisted in the
deelopment o this economic ramework and continue to sustain it.

Similar arguments can be made in relation to the law o contract. 1he recognition o the principle o the
enorceable bargain contract,. breaches o which can be pursued and enorced through the courts. has
been an essential tool in the deelopment o the modern market capitalist economv. As with the unction
o law in the maintenance o the social order. law can also be seen as instrumental in the creation and
underpinning o the economic order.

Neertheless. there are other wavs in which law is now used to regulate the economic order. It has long
been recognized that there are actiities which market economies are erv bad at undertaking. or which do
not make sense in crude market terms. Operating actories or machinerv with proper regard or health and
saetv is one example. (ertainlv a great deal o modern law-making actiitv has been ocused on the
creation o regulatorv rameworks within which business actiitv is required to be undertaken. which are
justiied on the basis that thev ill the gaps let bv market ailure.

Similarlv. it has long been recognized that untrammelled capitalist actiitv contains its own contradictions.
1here is an inexorable tendencv or capitalists to wish to accumulate market position. and i possible
dominate that position bv the exercise o monopolv power. loweer. the shit rom competition to
monopolv poses a undamental threat to the operation o the market. 1hus legal mechanisms hae been
put in place to promote competition and to limit the deelopment o monopolistic positions.

6
Indeed there is a more historical claim that there hae been situations in the past in which the law would seek to interene to
oer at least some protection to the weak: see 1hompson. L.P.. !big. ava vvter. London: Penguin. 1990,.

Dierences between dierent models o capitalism-e.g. the North American model. the Luropean model. or the Japanese
model-are not considered here. But it should not be assumed that the principles o capitalism are applied in exactlv the same
wav in all countries.
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1here is also an ineitable tendencv or those with greater bargaining power to seek to impose their wishes
in contracts on parties with weaker bargaining positions. A great deal o modern law is designed to leel
the plaving ield`. 1here is a ast bodv o consumer law which has the eect o sotening the binding
nature o contractual relationships bv giing added rights to consumers in situations where the bargaining
power between the supplier o goods or serices and the consumer o those goods or serices is regarded
as unequal. 1hus there are legal requirements that those who sell insurance policies or other expensie
inancial products should allow the purchaser a cooling-o period within which he mav change his mind.
lousing law regulates the relationship between landlords and tenants. Lmplovment law seeks to regulate
the relationship between emplover and emplovee. More generallv there are measures which enable the
consumer to challenge terms in contracts thought to be unair.

lere again. as with law and public order or law and social order. in relation to the economic order. the law
mav be said to perorm unctions that are to some degree in conlict. Law has helped to legitimate the
tools essential to the commercial context within which market capitalism is able to lourish. At the same
time law is used to limit the excesses o market behaiour that might otherwise logicallv result rom the
operation o market capitalism.

J.2.5 Law and International Order
Another unction or law is. arguablv. the proision o support or international order. 1his is a complex
and controersial subject not considered in anv detail here. 1here are those who argue that there is reallv
no such thing as international law: rather that maintenance o the international order is sustained bv
international relations and diplomatic pressure. But in erv manv respects. international bodies and
politicians like to assert that what thev are trving to achiee has legal backing. lor example:
Recent incursions bv the United Nations into particular world trouble spots hae been justiied at
least in part bv reerence to the legal ramework o the United Nations (harter and its executie
bodies. in particular the role o the Securitv (ouncil.
Attempts to deal with crimes against humanitv`-a particular curse o the modern age-are being
made through a special \ar (rimes 1ribunal which has been established bv the UN and which sits
in the lague.
In other areas. such as the regulation o world trade. or the protection o the enironment. the
regulation o the use o the sea. or een space. there is an increasing tendencv not onlv to enter
treaties-which historicallv was common practice-but also to create special institutions and
mechanisms or enorcement like courts or tribunals. which are independent o particular national
goernments.
1he conduct o war has long been subject to international legal constraints. or example the Genea
(onention on the treatment o prisoners o war. Similarlv other constraints on behaiour in war
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8
and other situations o conlict. such as the preention o torture. hae been prescribed in
instruments o international law.
One o the most pressing o current social issues. protection o those seeking asvlum in one
countrv because o ears o persecution in another countrv. is essentiallv shaped bv principles o
international law.

1hese are important and controersial issues. Len though the ocus o this work mav be said to be on
the rather more parochial subject o the Lnglish legal svstem`. we cannot ignore the global context in
which countries now operate. It has been argued that. ollowing the collapse o communism. a new world
order` has emerged. Legal instruments and institutions plav a signiicant part in the deelopment o that
new order. 1hough the ocus here is on what happens in Lngland and \ales,. this signiicantlv wider
dimension should not be orgotten.

J.2.6 Law and Moral Order
Another broad unction o law mav be said to be the proision o support or the moral ordering o
societv. 1his is extremelv controersial. Some theorists argue that there should be little i anv distinction
between law and moralitv: that the law should clearlv and deliberatelv mirror those issues o moralitv
which people think ought to inorm the wav we should behae. Others. howeer. seek to draw a clear
distinction between law and moralitv. 1hev argue that the mere act that manv people betiere that certain
orms o behaiour or actiitv are morallv wrong or example engaging in homosexual actiitv, should
not mean that such actiitv should be deined as being unlawul.

\hile there are clear dangers and considerable diiculties in seeking to equate law and moralitv. not least
because o the problems o determining what the common moralitv on anv gien issue might be.
neertheless manv rules o law are ounded on a moral iew o societv. Perhaps the clearest example is
that the moral imperatie not to kill people is relected in rules o the criminal law which outlaw such
actiitv.

In general it mav be suggested that rules o criminal law which relect some common moralitv. howeer
that mav be deined. mav be more acceptable and eectie in regulating behaiour than those rules which
do not so relect a common moralitv. lor example. there mav well be behaiours which manv would
regard as repugnant-dressing shabbilv. or drinking cheap alcohol in the streets-but which should not o
themseles be deined as criminal. (onerselv. there mav be rules o criminal law. or example about not
exceeding 30 m.p.h. in a built up area. which manv would not regard as particularlv morallv repugnant. but
which should neertheless be deined as criminal.
8



8
(urrent campaigns to change people`s perceptions about the non-desirabilitv o driing aboe the speed limit are being
directed as much to the moral issues as the legal issues inoled.
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In a quite dierent context. much o the law which seeks to regulate relationships between indiiduals is
also based in concepts o moralitv. or example relating to the institution o marriage. 1o an extent.
thereore. it can be said that another unction o law is to proide at least some support or the moral
order. a unction reinorced bv the protection o amilv lie under the proisions o the Luropean
(onention on luman Rights Art. 8,.

Related to a consideration o the relationship between law and the moral order is a consideration o the
relationship between tar ava retigiov. oraer. Despite an apparent decline in religious belie in Lngland. there
are still manv who argue that religion-both ormal and inormal-remains an important component in
the make-up o societv at large. loweer. and bv contrast with discussion about the relationship between
law and moralitv. the argument is not in present circumstances oten made that law should be supportie
o religion. Indeed there would be manv who would make a powerul argument. whether in general
principle or because o their own religious or anti-religious, belies. that law should vot be used to support
the religious order. Ouestions o spiritualitv and religious belie would be argued bv manv as alling within
that priate sphere o actiitv in which the law should not interene.

Neertheless. the historical role plaved bv religion in the deelopment o modern Lngland cannot be
whollv ignored. At its most basic. our calendar and major estials are irmlv based in the (hristian
tradition. not that o other religious groupings. 1here are a number o legal priileges that attach to the
(hurch o Lngland: there are others that applv to religious groups more generallv. 1here remains a
speciic law against blasphemv which eectielv applies onlv to the (hristian religion. 1hus it is arguable.
though not oten seen in this light. that present-dav law still plavs a residual part in the support o religious
order. in particular the (hristian religious order.

1his is controersial. not least because o the rise in a number o countries o arious orms o religious
undamentalism. 1hese are oten accompanied bv degrees o intolerance towards others that manv regard
as quite unacceptable in a modern pluralistic societv. Indeed it mav be the case that. in order to protect
social pluralism. the law should be used more to protect the abilitv o those o dierent religious belies to
hold and practice their religion. another issue embraced in the Luropean (onention on luman Rights
Art. 9,.


J.3 Other Macro Iunctions
In addition to the wavs in which law mav interact with the maintenance o and challenges to dierent
tvpes o order. law also has a number o other macro unctions.

^it. oppe

10
J.3.J 1he Resolution of Social Problems
1he response o politicians and their oicials to manv o the issues that are perceied as social problems is
to create more law seeking to regulate the behaiour complained against. 1his is regarded as the
appropriate or expected political response. Onlv rarelv do politicians concede that there mav be enough
law and that what is needed is better understanding or enorcement o that law. Len more rarelv are
politicians willing to accept that a possible solution to a problem might be to repeal existing rules o law or
to deelop the law in such a wav as to decriminalize the actiitv in question.
9
1heir mindset assumes that a
unction o law is to sole social problems. Indeed whole careers are deoted to the promotion o
legislation allegedlv designed to address particular social issues-een i. as oten happens. there is alreadv
perectlv satisactorv law alreadv aailable. or where changing the law is not reallv a solution to the
problem. Perhaps ciil serants and politicians who are responsible or prerevtivg legislation rom reaching
the statute book should be rewarded more generouslv than those who seek to drie legislation orward.,

In addition. one obious consequence o creating legal proisions to sole social problems is that
people-eer mindul o their own sel-interest-respond to new legal rameworks in wavs not predicted
bv the law-makers. A hidden but oten ineitable consequence o using law to sole social problems is.
thereore. that the erv process o creating new law results not in the solution o an existing social
problem but rather in the creation o new social problems. 1he process o dealing with one issue leads to
the creation o another issue which in its turn has to be soled at a1ater date.

J.3.2 1he Regulation of Human Relationships
Another erv important unction o the law is the regulation o the nature and extent o human
relationships. 1he nature o and ormalities relating to the creation o marriage is determined bv legal rules.
oten supplementing dierent religious rules. Law proides a ramework or the distribution o assets on
the breakdown o marriage. 1he law is also currentlv being deeloped in relation to the regulation and
underpinning o long-term relationships where persons hae not gone though the ormalities o marriage.
1hese deelopments are being considered not onlv in the context o heterosexual relationships. but also
homosexual relationships. Law sets boundaries to the scope o sexual relationships. whether heterosexual
or homosexual. prescribing or example the minimum age o sexual consent. and making certain sexual
relationships within the prohibited degrees o consanguinitv` incest and other close relationships, are
unlawul. 1he law also sets down a ramework or the treatment o children and other amilv members.


9
listoricallv this has oten happened. lor example manv o the criminal oences that two or three hundred vears ago might
hae led to Draconian punishments such as transportation or een the death penaltv now seem erv triial and are either no
criminal at all. or dealt with much less seerelv. 1odav manv argue that a less criminal approach to the use o sot drugs`
might not onlv lead to more equitable treatment as compared with those who use alcohol or nicotine. but also lead to
reductions in other orms o criminalitv resulting rom the need or drug users to obtain the monev to buv their drugs. On the
other hand. there are powerul political arguments that anv relaxation in the goernment`s approach to drug use would send
the wrong signal` to the communitv at large.
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11
J.3.3 1he Lducative or Ideological Iunction of Law
A urther unction o law is that. almost irrespectie o its impact in particular cases. it has an educatie
unction: it contributes to shaping part o the ideologv o a nation. 1o gie a simple i signiicant example:
there is no doubt that attitudes to drinking and driing hae changed dramaticallv oer the last twentv
vears. In part this is the result o powerul adertising. demonstrating the deastating impact that drink-
drie accidents can hae on ictims and their amilies. But the change in attitude has also been the result
o changes in the law contributing to a climate o opinion in which drinking and driing is just no longer
regarded as sociallv acceptable behaiour.

Another example. alreadv mentioned aboe. is law dealing with arious orms o discrimination. \hen
such laws are brought into eect. those who argue or their introduction oten accept that the law will not.
on its own. alter the attitudes o mind that led to the patterns o discriminatorv behaiour which hae led
to the creation o these laws. loweer. those who hae sponsored such laws see them as not onlv creating
certain legal rights which mav be enorceable bv indiiduals. but also sending a more general educatie
signal to members o societv at large that discriminatorv behaiour is not acceptable.

More generallv. countries that embrace the principle o the rule o law are. in eect. asserting that powers
o oicials o the state must be limited and that the indiidual citizen should hae both the right and the
opportunitv to challenge decisions. where thev are thought to be wrong or in some respect unair.

1he recent decision bv the British goernment to introduce the luman Rights Act. incorporating the
Luropean (onention on luman Rights directlv into Lnglish law. is another example o legislation that
will not onlv crate legal rights which indiiduals mav seek to pursue through the courts. but which also
sends an important educatie signal about the limits within which people. particularlv those who work
within goernment. must behae. In this sense. thereore. another unction o law relates to the education
o attitudes amongst members o the population.


J.4 Micro Iunctions of Law
1urning rom the macro to the micro leel inoles consideration o rather more speciic unctions or
law. manv o which derie rom the macro unctions identiied aboe. A number o examples are oered:
this does not purport to be a comprehensie list. 1he reader is inited to think o other unctions not
identiied here. In addition. the reader mav be able to think o other examples to illustrate the particular
unctions which hae been identiied.

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12
J.4.J Defining the Limits of Acceptable Behaviour
1he area o law with which most people hae at least some amiliaritv is the crivivat tar. A major objectie
o this branch o the law is to prescribe the limits o behaiour which are sociallv acceptable. 1he criminal
law seeks to prohibit manv kinds o actiitv about which there would be widespread agreement. such as
murder and iolent crime. It also outlaws a wide range o other actiities about which there mav be more
debate. such as the use o particular tvpes o drug. 1he ollowing points mav be made in this context:
Not all behaiour which mav be regarded bv manv as undesirable is therebv characterized in legal
terms as criminal. 1hus there is no law preenting a person oer the age o 18 rom drinking
alcohol. loweer. where the consequences o that conduct mav impinge on others. the law oten
steps in. 1here is a strict law which makes it unlawul or persons who hae been drinking alcohol
to drie their car.
1here are more wavs in which human conduct is regulated than simplv bv the use o law. (odes o
moralitv. religious principles. the pressures o riends are all other actors which restrain the wavs in
which people behae.
Dierent countries set the boundaries o their criminal law in dierent places: what is criminal in
one countrv is not necessarilv criminal in another.
10
Although there is a great deal o commonalitv
between dierent bodies o criminal law. in important respects the boundaries o criminal law are
cvttvratty aetervivea. set bv the demands o the speciic societv. 1here are particularlv important
distinctions in societies with dierent religious traditions or moral backgrounds: laws operating in
Islamic countries are oten quite dierent rom those in countries ounded on the Judaeo-(hristian
tradition.
1he boundaries o the criminal law are ayvavic. Actiitv which has been regarded as criminal at one
point in time will not necessarilv be regarded as criminal at another point in time. 1he prohibition
o alcohol in the US during the 1920s is a good example.

1he attempt bv law to regulate human behaiour is not exclusielv through use o the criminal law. Areas
o cirit tar also seek to do this. lor example. i parties to a contract break that contract. rules o law allow
the partv aected to claim compensation or other remedies rom those in breach o contract. 1he law o
negligence prescribes situations in which a person who has injured another has to compensate that other
or the injurv. In short. law seeks to deine the scope o the obligations that exist between indiiduals.
Although the objecties o rules o ciil law are not to punish an oender. in the sense used in the context
o the criminal law. it is neertheless the case that rules o ciil law indicate that a contract cannot be
breached with impunitv. nor can one person act negligentlv in relation to another. In this sense. thereore.
the rules o the ciil law also send the message that certain tvpes o behaiour are not acceptable or are
undesirable.

10
1his can hae an important practical consequence in that i a person commits a criminal act in one countrv and lees to
another countrv where that act is not criminal. that is oten the basis or successullv resisting extradition proceedings-
oicial proceedings to bring the alleged miscreant back to the countrv where the original act took place or trial.
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J.4.2 Defining the Consequences of Certain Iorms of Behaviour
Law does not o course simplv deine those orms o behaiour which are unacceptable. It also prescribes
consequences. In the case o criminal law. these are the punishments that attach to a inding o guilt.
Similarlv in the area o the ciil law. the law prescribes the remedies that the person aected bv a breach
o contract or a negligent act mav be able to obtain rom the perpetrator.

In some situations the same acts mav generate quite dierent legal consequences. lor example. a road
accident mav be caused bv a person driing a car carelesslv or recklesslv. 1his mav result in the police
seeking to get that person prosecuted through the criminal courts: i ound guiltv this mav result in the
imposition o a ine or een imprisonment. I the accident causes damage to another. that other person
mav seek compensation bv bringing an action or damages in negligence. 1he drier mav argue that the
accident occurred because his car was improperlv sericed. and mav thereore bring an action or breach
o contract against his garage. 1hree dierent legal consequences hae thus arisen rom the same incident.

J.4.3 Defining Processes for the 1ransaction of Business and Other Activities
A rather dierent unction o law is to deine procedures bv which certain transactions must be carried
out. Some o these are quite simple. such as those relating to the making o simple contracts. loweer. in
manv cases. particularlv in situations where there is a concern to preent raud. considerable ormalitv mav
be required. Manv o these relate to transactions dealing with the transer o entitlement to propertv rights.
lor example. the process o buving and selling houses is subject to a number o ormal legal requirements.
known collectielv as the rules o conevancing. 1here are detailed rules which relate to the creation o
leases. 1here are special rules which relate to the creation o wills. Similarlv. there are detailed
requirements or the creation o trusts or settlements o propertv.

One o the problems with prescribing ormal requirements is that. whateer the law states. people in
practice attempt to carrv out these transactions in ignorance o the rules. 1he law then has to deelop
supplementarv principles which seek to preent injustice occurring. notwithstanding the existence o
procedural irregularitv. Manv o the principles o the law o Lquitv hae deeloped in response to this
problem.

J.4.4 Creating Regulatory Irameworks
Related to the last categorv a great deal o law seeks to regulate those who proide serices to the public.
lor example. substantial bodies o law regulate the actiities o solicitors. doctors. architects. nurses. or
estate agents. 1here is a ast regulatorv ramework designed to control the actiities o those who proide
inancial serices to the public. to preent raud and other breaches o trust. A consequence o the
priatization o the bulk o the ormer nationalized industries has been to create a ast bodv o law
designed to regulate the actiities o companies now in the priate sector such as telecommunications.
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14
utilities. and transport, including the promotion o competition and the regulation o prices. And speciic
areas o economic actiitv are subject to the most detailed legal regulation designed to promote standards
and gie the consumer alue or monev. 1he regulation o the housing market through housing law is a
prime example.

A dierent orm o regulatorv law. but one that has been in existence or manv vears. is planning law
regulating the use to which land can be put in this countrv. Law which seeks to regulate industrv in order
to protect the enironment is another example. In this context. the law operates at an international as well
as a national leel.

Regulatorv law also seres another purpose. It deines the categories o person able to make
representations to goernment about a particular policv or decision. lor example. again in the context o
planning law. the releant law determines who mav challenge decisions o the planning authorities. and
who mav appear to make their case at anv public inquirv resulting rom a planning decision.

J.4.5 Giving Authority to Agents of the State to 1ake Actions against Citizens
Another unction o law is to gie power to state oicials to take action against members o the public.
1here are numerous examples: the powers o the police to stop. search. question. arrest. and caution
members o the public is one: the power o doctors to detain in mental hospital those diagnosed as
suering rom acute mental illness is another: the power o social workers to remoe children rom
amilies where thev are thought to be as risk and to replace them in the care o the local authorities is a
third. Similarlv. agents o both central and local goernment are gien power to take monev awav rom
members o the public through the taxation svstem.

A rather dierent example is the power gien to goernment and other agencies o the state to acquire
land compulsorilv in the public interest.

J.4.6 Preventing the Abuse of Power by Officials
Set against the last heading. much law is designed to preent abuses o power bv public serants. lor
example. the police are required to operate within a ramework o powers prescribed bv the Police and
(riminal Lidence Act 1984. designed to set boundaries to their powers o arrest. search. and questioning.

1he heart o the principles o administratie law |.| relates to the importance o oicials acting within
the ramework o the law which prescribes their power: not allowing oicials to make use o the
discretionarv powers in an abusie wav. and giing people the opportunitv to take adantage o certain
procedural saeguards-or example a right to a hearing-beore aderse decisions about them are taken.
1hese are urther examples o rules o law setting boundaries to the power o the state oicials.
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J.4.7 Giving Power/Authority to Officials to Assist the Public
In contrast to the preceding categorv. the law also sets down a ast range o requirements wherebv
agencies o the state must proide serices or other goods to the public. At the most general leel. all
public expenditure has to be legitimated bv special Acts o Parliament known as the Appropriation Acts.
1hese gie general authoritv or the expenditure o public monev on the range o social and other policv
programmes run bv goernment.

More speciic bodies o law deal with the details. Social securitv law is one example. setting out as it does
the entitlements to social securitv beneits which hae been related bv goernment. Manv other examples
could be gien: entitlement to ree education is one. ree treatment within the National lealth Serice
another. All these actiities o the social securitv. and health authorities. are underpinned bv detailed legal
rameworks.

J.4.8 Prescribing Procedures for the Use of Law
In addition to prescribing procedures or conducting dierent tvpes o transaction. there is another
important bodv o lawprocedural lawwhich seeks to control the wav in which courts and other
adjudicatie bodies are to operate. 1his bodv o law mav set limits to the eidence that can be brought in
dierent tvpes o case. It also prescribes the wav in which dierent tvpes o proceeding. whether in the
courts. or other ora. are to be conducted.


J.5 Conclusion: Law and Society
It is not claimed here that these examples o the macro and micro unctions o law in societv are
exhaustie. Readers should think about whether there other unctions or law and whether thev should be
regarded as macro or micro in character. 1here is indeed a huge literature on the relationship o law and
societv o which the oregoing is onlv a erv limited summarv. loweer a number o points need to be
made here.

1, All the unctions o law. whether deined as macro or micro. are covtivgevt upon the stage o
deelopment o that societv. \hile manv o these unctions o law will be common to erv manv societies.
other will certainlv not be.

2, 1he laws that exist and the wavs in which thev are used are dependent on the ideologv and politics o
the particular countrv. lor example. current notions o social justice and equalitv in the United Kingdom
hae deeloped in the light o particular socio-political and economic theories. 1hev will change again in
the uture. 1he list o unctions proposed here should not thereore be regarded as set in concrete: it will
relect other broader changes in the social and political ideas and ideals o that societv.
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16
3, 1he unctions o law are bv no means alwavs consistent with each other: preseration o social order
mav on occasion be in sharp conlict with the unction o protecting ciil liberties: the role o law in
adancing equalitv or social justice mav be in conlict with its role in supporting current social and
economic orders.

4, It should be remembered that there are still actiities which are not currentlv the subject o legal
regulation. Goernments requentlv claim that thev are seeking to limit the encroachment o law.
Interestinglv. howeer. when a new technologv arries which actuallv enables actiities to occur outside
the normallv accepted regulatorv rameworksthe internet is a good current examplepoliticians and
others quicklv become agitated.

5, 1here are also signiicant techniques. apart rom recourse to law. used to regulate and alter the wavs in
which people behae. lor example. much o the practice o economics is based on the assumption that i
inancial incenties are right. then behaiour patterns will change. An interesting example is the current
proposal that problems o global pollution and global warming must be tackled not just bv laws saving
what should or should not be done. but also bv getting inancial incenties righthigher taxes paid bv
those who pollute. or example.

6, More undamentallv. there are signiicant issues about the wav in which we order our societv which are
either not touched on at all bv law. or onlv in relatielv insigniicant wavs. lor example. one o the major
social issues o our time relates to the extent to which groups in the communities are excluded rom the
mainstream o social lie. whether through lack o monetarv resources. or other material resources such as
housing. 1o be sure. there are legislatie proisions relating to the proision o social securitv beneits. or
to be proision o accommodation to the homeless. But the entitlements contained in these bodies o law
are highlv contingentthose claiming beneits or access to housing hae a substantial list o conditions
that thev must satisv beore thev will be helped. 1he act that the rhetoric o law emplovs concepts such
as libertv` or justice` does not mean that the bodv o substantie law is actuallv able to delier social
justice to all the citizens o the United Kingdom.

|.|
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1
2. Other Jurisdictions

2.J Origin of Administrative Law in South Africa
JJ

Although South Arican law in general is a complex mixture o common law
12
which is basicallv Roman-
Dutch in character. with large chunks o Lnglish doctrine. chielv in the areas o public and commercial
law.
13
it can be said that the South Arican administratie law is mainlv based upon the traditional British
model o administratie law and its doctrines. traditions and conentions.
14
1his Lnglish svstem can be
characterised bv the kevwords legislatie supremacv and parliamentarv soereigntv. ministerial
responsibilitv or administratie action. the Dicevan doctrine o the Rule o Law and the idea o separation
o powers.
15
1he soereigntv o parliament. especiallv. meant that courts could not question the aliditv o
dulv enacted Acts o Parliament
16
nor could thev impose their own standards upon the administratie
process.
1
1his had great inluence on the question o judicial reiew o administratie action. On the
other hand. the courts generallv did create law bv deeloping the legal requirements or a alid
administratie act
18
and thev also plaved a crucial role in the scrutinv o the administration and its action.
19

In contrast to the German svstem o administratie law or example. the ocus was more on the
relationship between the administratie bodies and the courts and not on the wav in which administratie
decisions are taken bv the administratie bodv.
20
In this context. South Arican administratie law had to
be considered as a legal svstem with retrospectie ocus concentrating on judicial remedies or
maladministration instead o being more prospectie in creating procedures and structures that would
oster good decision-making.
21
1hese preliminarv remarks hae led to the question o how the South
Arican administratie law has dealt with the problem o executie discretionarv powers and judicial
reiew in general and with unreasonableness as a ground o judicial reiew in particular.


2.2 Origins of American Law
22

Just as there was no uniorm eolution o political organization in the colonies. there was no uniorm
growth o colonial law. 1he same diersitv as to extent o crown control. date o settlement. and

11
Lange. (.. |vrea.ovabteve.. a. a Crovva ot vaiciat Rerier iv ovtb .trica. Nomos Verlagsgesellschat. Baden-Baden. 2002. p. 11.
12
(order & Maluwa .avivi.tratire v.tice iv ovtberv .trica: ac/grovva ava ove ..ve. in (order & Maluwa eds, .avivi.tratire
v.tice iv ovtberv .trica 199, 3 5: (order vporervevt ava .ccovvtabitity 21: Parker 1he Administratie Justice` proision o
the constitution o the Republic o Namibia: a constitutional protection o judicial reiew and tribunal adjudication under
administratie law` 199 C. 88 89.
13
(order 1989 .R 23: Parker 1991 C. 89.
14
(order vporervevt ava .ccovvtabitity page 21: Lrath 1996 DOV 314: ater .avivi.tratire ar 30.
15
ater .avivi.tratire ar 30. 31: Asimow 1996 . 624.
16
Burns .avivi.tratire ar 6: Van \vk Administratie Justice in erv.teiv r e.ter and ^et r e Rov 199 .R 249 251:
Motala Cov.titvtiovat optiov. tor a aevocratic ovtb .trica 1994, 206.
1
Baxter .avivi.tratire ar 30.
18
Baxter .avivi.tratire ar 83.
19
Grant .avivi.tratire ar tbrovgb tbe ca.e. 1998, 1.
20
Lrath 1996 DOV 314.
21
Breakwater Declaration 1993 .aa vriaica 18.
22
larnsworth. A.. .v vtroavctiov to tbe egat y.tev ot tbe |vitea tate.. Oceana Publications Inc. USA. 1983. pp. 6. 11. & 12.
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18
conditions o deelopment resulted in thirteen separate legal svstems. each with its distinct historical
background. lurthermore. as the boundaries o the United States were extended. large areas were added
which had been subjected to Spanish. Mexican. or lrench soereigntv or substantial periods o time. A
ew states. most notablv Louisiana. still show the imprint o such origins. and the ciil law institution o
communitv propertv can be ound in eight states todav. Neertheless. the similarities among state law ar
outweigh the dierences and there is on the whole an unmistakable amilv resemblance to the law o
Lngland. 1hat the inluence should hae been Lnglish is hardlv surprising in iew o the language and
nationalitv o most o the colonists: that this inluence should hae met with the resistance that it did calls
or some explanation.

|.|

1he inluence o Lnglish law in America. which had irtuallv ended bv the time o the (iil \ar. is
negligible todav. Onlv inrequentlv are the more recent Lnglish cases cited in contemporarv American
judicial opinions and een more rarelv will a question arise that turns on the reception o Lnglish law. \et
the undamental approach. much o the ocabularv. and manv o the principles and concepts o the
common law are as amiliar in the United States as in Lngland. Lnglish cases. though in relatielv small
numbers. are still part o the taught tradition` in American law schools. And while American lawvers and
judges mav commonlv ignore Lnglish authorities. thev are neertheless conditioned bv Lnglish ideas that
were imported into American law oer a centurv and a hal ago. loremost among these are: irst. the
concept o supremacv o law. as exempliied in this countrv bv the distinctie principle that een the state
is subject to judicial reiew under constitutional standards: second. the tradition o precedent. according to
which later decisions are based on earlier cases: and third. the notion o a trials as a contentious
proceeding. a contest. oten beore a jurv. in which the adersarv parties take the initiatie and in which
the role o the judge is that o umpire rather than o inquisitor.


2.3 Law in Scotland
23

\hen we examine the law in Scotland certain unique problems conront us. Most Scots would claim
Scotland is a nation. (ertainlv in most sports though not at the Olvmpic Games, it counts as a nation.
But it is not in itsel a state. In the Scottish Oice it has onlv some o the apparatus o a state. part o that
o the United Kingdom o Great Britain and Northern Ireland. It has no legislature o its own. but its
representaties participate in special wavs in the Parliament o the United Kingdom. It does hae its own
courts. but it shares with the rest o the United Kingdom a common highest court in non-criminal cases.
Most o its tribunals are part o a United Kingdom organisation. It has its own legal proession.. Some o
its laws are peculiar to Scotland. some are common to the whole o Britain i.e. Lngland. Scotland and

23
\hile. R. & \illock. I.. )be cotti.b egat y.tev. Butterworth & (o Publishers, Ltd. Ldinburgh. 1993. pp. 6-.
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19
\ales,. some are shared with the rest o the United Kingdom i.e. with Northern Ireland as well,. Some
are separate in orm. but almost identical in substance. |.|


2.4 1he Development of Lnglish Law in Ireland
24

It is alreadv clear that the legal historv o Ireland is. in some respects. also its political historv. lrom the
antage point o the late 20
th
(enturv. it is clear that Ireland was to become a satellite o Lnglish control
up to independence in 1922. lrom 1800 onwards. in the wake o the .ct ot |viov. Lnglish rule in Ireland
took the orm which was to be the basis or so much iolence. ailed insurrections and complaints until
the granting o independence. During the late 18
th
(enturv. there had been an Irish Parliament Grattan`s
Parliament,. but the Act o Union o 1800 centralised control in London until 1922.

Going urther back in time. Lnglish rule had been a practical realitv onlv since the 16
th
or 1
th
(enturv.
and prior to that date Lnglish law and Lnglish rule onlv applied in the area around Dublin known as 1he
Pale where Lnglish traders were entitled to operate the King`s law. Outside the Pale. natie customs and
rules. known as the rebov ar. continued to be applied in spite o decrees o the Lnglish kings that such
rules were contrarv to Lnglish law and o no eect. 1he modern phrase bevond the Pale` relects this
point. 1he natie Irish were ruled bv local chies who came into inrequent contact with the Lnglish. 1he
sophistication o the Brehon Law can be gauged rom the substantial literature which remains or scholars
to discuss.

Beore the 16
th
and 1
th
(enturies. thereore. Lnglish rule in Ireland was a matter o occasional sorties into
the hinterland rather than a matter o the tvpe o permanent enorcement o laws which took place in
Lngland and \ales. 1he irst. and most inamous perhaps. rom the Irish perspectie was the Norman
Inasion o Ireland` o 110. \hile the landing o Strongbow Richard litzGilbert. Larl o Pembroke, in
\exord mav hae had immense svmbolic signiicance leading to the reerence to 00 vears o
oppression,. it did not hae the immediate eect o transorming Ireland into an Lnglish colonv. It was.
howeer. the beginning o a process which inoled the passing o Poyvivg`. .ct o 1494. which stated that
all laws passed bv the Lnglish Parliament applied to Ireland. but which did not hae ull orce and eect
in Ireland. ultimatelv. until the passing o the Act o Union in 1800. loweer. as mentioned at the
beginning o this section. whateer the position prior to 1800. Ireland was irmlv in Lnglish control rom
that date and all laws passed up to then had eect in Ireland rom that time: some o them continue to do
so. 1he court svstem which was established in Ireland during the 19
th
(enturv was modelled on the svstem
which had deeloped in Lngland since the 1066 Norman (onquest. and so rom our present antage
point. the court svstem which existed up to 1922 owed its origins to eents in Lngland rom the 11
th


24
Bvrne. R. & Mc(utcheon. J.. )be ri.b egat y.tev. Butterworth Ireland, Ltd. 1995. pp. 9-10.
^it. oppe

20
(enturv onwards. een i Ireland came to inherit that legacv at a relatielv late stage. In this respect.
Ireland was the irst recipient o the Lnglish legal svstem |.|.
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3. Contract Law
25


3.J Introduction
3.J.J Definition of Contract
A contract mav be deined as an agreement which is either enorced bv law or recognised bv law as
aecting the legal rights or duties o the parties. 1he law o contract is. thereore. primarilv concerned
with three questions: is there an agreement is it one which should be legallv recognised or enorced and
just how is the agreement enorced. or in other words. what remedies are aailable to the injured partv
when a contract has been broken

1his introductorv chapter deals with a number o general points arising mainlv. though not exclusielv.
out o the three questions just put.

3.J.2 Contract and Contracts
1he subject-matter o this book is the law o contract`. It was ormerlv the ashion. which in some parts
o the common law world still persists. to reer to the law o contracts in the plural,. 1he point o
modern reerences to a law o contract in the singular, is to indicate that the law has a general or uniied
theorv o contract. that is. one which applies to all contracts irrespectie o their content or subject-matter.
A contract mav relate to anvone or more o a large number o transactions. such as sale o goods. land or
shares. emplovment. carriage. hire. lease. mortgage and so orth. A general theorv o contract asserts that
there is at least a substantial bodv o rules which applies to all contracts in common: and that these rules
constitute the law o contract`. 1his is the theorv o modern Lnglish law. On the other hand it has been
said that Roman law had not a theorv o contract. but a theorv o contracts`.
26
\hat is meant is. that the
rules which goerned the ormation and eects o a contract depended either on its content e.g. whether
it was sale or loan, or on its orm e.g. whether it was expressed orallv or in writing,. Neither theorv can be
accepted without qualiication. In most modern svstems o law there is. indeed. a bodv o rules which
applies to contracts generallv. 1hese rules mav. howeer. applv to particular transactions such as sale.
emplovment or carriage. subject to certain modiications: and such transactions mav also be goerned bv
special rules peculiar to them. in the sense that thev hae no close analogv with general rules which applv
to other transactions. In this book our concern will be with the general rules. and to some extent with the
modiied orm in which thev applv to particular transactions. At the same time. it is necessarv to warn the
reader that the general law o contract` is something o an abstraction. since most contracts obiouslv
concern some particular class o transaction: and since there is alwavs some degree o danger in assuming
that a general` rule applies at least without modiication, to a contract o the particular tvpe under
consideration.

25
1reitel. G.. .v Ovttive ot tbe ar ot Covtract. Butterworths. London. 1995. pp. 1-2.
26
Buckland and McNair. Rovav ar ava Covvov ar 2
nd
edn,. p. 195.
^it. oppe

22
3.J.3 Agreement
In the normal case. a contract results rom an agreement between the parties to it: but the description o a
contract as an agreement is neertheless subject to a number o important qualiications.

1he irst o these is that the law generallv speaking applies an objectie test o agreement. I the words or
conduct o one partv. A. are such as to induce the other. B. reasonablv to beliee that A is assenting to
certain terms proposed bv B. then A will generallv be held so to hae assented. whateer his actual state o
mind mav hae been.
2
1he law adopts this objectie test because a person who reasonablv belieed that a
contractual proposal had been made to him might be seriouslv prejudiced i he could not take it at its ace
alue. 1he principle is. howeer: one o conenience onlv. so that it will not be applied where. on balance.
the inconenience to A o applving the objectie test. exceeds the inconenience to B o allowing A to
relv on his actual intention: or example. where B knows that A`s actual state o mind was not in
accordance with the objectie appearance created bv A`s conduct.
28
1he position is probablv the same
where. though a reasonable person in B`s position would hae belieed that A was assenting to the terms
in question. B actuallv had no such belie: or in such a case B cannot suer the prejudice against which
the objectie test is meant to protect him.

1he second qualiication is that. een where agreement determines the existence o a contract. it does not
necessarilv determine all the contents or scope o a contract. 1hese matters are oten determined bv so-
called implied terms`. 1hese mav be diided into terms implied iv tact and terms implied iv tar |.|. Onlv
terms implied in act are trulv based on the intention o the parties. 1erms implied in law are duties prima
acie imposed bv law: and with respect to them. the intention o the parties is releant onlv insoar as it
mav be open to the parties to exclude the implied terms bv contrarv agreement.

1hirdlv. there are cases. commonlv discussed under the general heading o contract. in which the
obligation does not trulv arise out o an agreement between two parties. but rather out o a promise made
bv one o them. 1his would be the position where a person made a gratuitous promise in such a orm that
it was legallv binding: or example. in a deed. Such a promise can bind the promisor een beore it is
communicated to the promisee and hence without anv agreement between the parties.

lourthlv. the idea that contract depends on agreement must be qualiied in cases in which one partv is in a
erv much stronger bargaining position than the other. so that the ormer can in a sense impose his terms
on the latter. 1his possibilitv is illustrated bv the standard orm contracts which are used bv manv
commercial suppliers o goods or serices. Under such contracts the customer mav be bound bv terms o

2
!it.ov tPaat) c Co . r Partevreeaerei avvab tvvevtbat |1983| 1 A( 854. as interpreted in .ttiea Marive )rav.port tta r 1ate ao
Rio Doce ^aregacao .. )be eoviaa. D |1985| 2 All LR 96.
28
See covv ta r Cvav Cvav bippivg tPte) ta. )be Cotaev ear |198| 1 Llovd`s Rep 330 at 341
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23
which he is not aware because he has taken his chance o whateer terms were contained in the orm. or
he mav hae agreed reluctantlv. or he mav not in truth hae agreed` at all.

3.J.4 Ireedom of Contract
In its most obious sense. the expression reedom o contract` is used to reer to the general principle
that the law does not restrict the terms on which parties mav contract: it will not gie relie merelv because
the terms o the contract are harsh or unair to one partv. Manv o the basic principles o the modern law
o contract were settled in the last centurv. when. in the light o the preailing tai..e. taire philosophv. it
was thought wrong to interere with priate agreements on such grounds. 1he present trend is rather to
stress abuses to which the principle o reedom o contract` can gie rise: so that the principle has been
considerablv restricted. both bv legislation and bv judicial decision. Verv substantial legislatie inroads on
the principle hae. or example. been made in the law o landlord and tenant. and in the law o consumer
contracts: while restrictions on the eectieness o exemption clauses in standard orm contracts are due
partlv to judicial decisions and partlv to legislation. Such deelopments now gie a good deal o protection
to the person who is assumed to be the weaker partv to a contractual relationship. But in most commercial
transactions between parties. bargaining at arm`s length. the principle o reedom o contract` remains an
important one.

lreedom o contract` is also used in another sense. to reer to the principle that. in general. a person is
not bv law compelled to enter into a contract. lere again the law has rom time to time made exceptions
to the general rule on grounds o public interest. 1he earliest exceptions related to the so-called common
callings` o common carriers and innkeepers. Such persons could not reuse their serices as thev pleased:
thev could do so onlv on certain grounds speciied bv law. In modern times a similar principle has been
extended bv legislation oer a wider area so that. or example. a supplv o goods mav not be reused to a
retailer on the ground o price-cutting:
29
emplovment or accommodation or certain other acilities mav not.
in certain circumstances. be reused to a person on grounds o race or sex:
30
it is unlawul to reuse to
emplov a person because he is. or is not. a member o a trade union`:
31
and exclusion rom a trade union
on one o a number o speciied grounds gies rise to a claim or compensation.
32
Len at common law
there seems to be a remedv or arbitrarv exclusion rom an association e.g. on religious or political
grounds,. i the exclusion depries the person in question o the opportunitv to exercise a particular
proession.
33



29
Resale Prices Act 196. s 11.
30
Race Relations Act 196. Pts II and III: Sex Discrimination Act 195. Pts II and III.
31
1rade Union and Labour Relations (onsolidation, Act 1992. s 13 1,a,.
32
1rade Union and Labour Relations (onsolidation, Act 1992. ss 14-1. as substituted bv 1rade Union Reorm and
Lmplovment Rights Act 1993. s 14.
33
See ^aget r eitaev |1996| 2 OB 633 a case o sex discrimination. now unlawul under Sex Discrimination Act 195. s 13,.
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24
It is obious that. the more the law intereres with the relationship o the parties. the less important the
actor o agreement becomes. In some situations the degree o intererence is so large that it becomes
improper to describe the relationship between the parties as a contract. One obious illustration o such a
relationship is that o marriage. lere. the parties can onlv decide whether or not to enter into the
relationship. Once thev hae done so. its essential incidents are determined bv law: or example. an
agreement that a marriage should last or a trial period o three vears would not hae anv legal eect. In
other cases. one o the parties mav not hae anv choice at all: or example where a person`s propertv is
compulsorilv acquired against his will under statutorv powers. 1hese cases dier rom those discussed in
the preceding paragraph. In those cases. the relationship is contractual because the parties hae a
considerable degree o legal reedom to decide upon the terms o their relationship. een though thev mav
enter it under some degree o legal compulsion.

3.J.5 Reasons for Lnforcing Contracts
1he legal enorceabilitv o contractual agreements is so well established. in all western svstems o law. that
a discussion o the reasons or it mav seem to be superluous. \et such a discussion is important in
relation to the topic o remedies or breach o contract. since the principles on which enorcement is
based will determine the oten diicult question o the extent to which enorcement is to be carried.
1hree reasons or the enorcement o contracts are commonlv gien. and thev mav be illustrated bv some
simple hvpothetical cases. lirst. A has agreed to buv something rom B and paid or it in adance but B
has not deliered it. I B could neertheless keep the adance pavment. he would be unjustlv enriched: and
it is thereore generallv agreed that he should at the erv least pav back the monev to A. 1his process is
sometimes reerred to as protecting A`s restitution interest`. Secondlv. A has agreed to render some
serice to B at a distant place. le incurs traelling expenses in getting to that place but on his arrial there
B repudiates the agreement. lere A`s expenditure has not enriched B. but it is neertheless generallv held
that A should hae a remedv against B. in respect o the wasted expenditure which he has incurred in
reliance on the contract. 1his process is sometimes called the protection o A`s reliance interest`. But the
law o contract goes bevond protecting the restitution and reliance interests. as a third illustration will
show. A oers to buv a picture rom B or +20.000 and B accepts the oer. 1he same dav. beore A has
paid B or incurred anv expense in reliance on the contract. B repudiates it bv reusing to delier the
picture. 1here is no doubt that A can enorce the contract: and the reason gien is. that A`s expectations
arising out o the contract hae been disappointed. It is said that the law here protects A`s epectatiov
ivtere.t. 1he protection o such expectations is the characteristic eature o the law o contract. O course.
other expectations are protected bv other branches o the law: or example. under the law o torts a
person who has been injured bv another`s negligence mav recoer damages or loss o his expected
earnings. But this expectation exists independentlv o the negligence giing rise to the legal liabilitv to
compensate or its loss. 1he law o contract. on the other hand. protects expectations which owe their
existence solelv to the erv agreement or breach o which the action is brought. 1he common
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25
explanation o this state o the law is that such protection is necessarv in the interests o commercial
conenience: that business could not go on` unless contractual expectations were protected bv law. 1his is
probablv too extreme a iew. In practice. a good deal o business does go on without the sanction o legal
enorceabilitv o expectations. One mav instance the erv considerable credit betting industrv: or business
arrangements which are so ague as not to amount to binding contracts. or which are expressed to be
gentlemen`s agreements`. On the other hand the rule o law bv which agreements or the sale o homes
subject to contract` are not legallv binding has been criticised preciselv because o the inconenience
which it can cause to the disappointed partv. 1he protection o contractual expectations does mitigate
such inconenience and so tends to promote stabilitv: it also proides the legal ramework or the
operation o share. commoditv and similar markets. 1his is the best explanation or the general principle
that the law will protect these expectations. een where there has been no receipt o beneit under the
contract and no loss suered bv action in reliance on it.

3.J.6 Common Law and Lquity
Lnglish law recognises a distinction between common law and equitv: and hence between legal and
equitable rights. remedies and deences. Originallv. the distinction was based on the act that common law
and equitv were distinct svstems o law. administered in separate courts. 1his separate administration o
the two svstems was abolished oer a hundred vears ago. so that both are now administered in the same
courts. Len so. the distinction remains o considerable importance to an understanding o the law o
contract. Although generalisations on the point are hazardous. it is broadlv speaking true that equitv oten
takes a less rigid or literal approach than the common law to contract problems: that it pavs greater regard
to substance than to orm: and that it oten proides more satisactorv remedies than those aailable at
common law. Dierences between the common law and equitable approaches to contract problems will
thereore hae to be discussed at manv points in the ollowing |sections|.


3.2 Agreement
1his |section| is concerned with the process bv which the parties to a contract reach agreement. Generallv.
that process can be analvsed into the acceptance bv one partv o an oer made bv another. lor example.
A mav oer to sell B 20 tons o coal or ]500: and when B savs I accept` or uses words to that eect, a
contract is concluded. In practice. the course o contractual negotiations is oten erv much more
complex than this. \hen parties begin to negotiate there mav be considerable dierences between them
as to price. quantitv. qualitv. delierv dates. terms o credit and so orth. Graduallv. bv a series o
concessions. thev moe towards agreement. and it is oten hard to sav just when an oer has been
accepted. lor the purpose o answering this question. the law distinguishes between arious steps or
stages in negotiations.

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26
3.2.J Offer and Invitation to 1reat
An oer is a statement to the eect that the person making it is willing to contract on the terms stated. as
soon as these are accepted bv the person to whom the statement is addressed. 1he person making the
statement is called the otteror: the person to whom it is made is called the otteree or i he accepts the oer,
the acceptor. 1he oer mav be made to an indiidual. or to a group o persons. or to the public at large: it
mav be made expresslv or bv conduct. Under the objectie test. A`s words or conduct can constitute an
oer i thev induce B reasonablv to beliee that A intended to make an oer to him. een though A
actuallv had no such intention: or example. where a uniersitv oered a place to an intending student as a
result o a clerical error.
34
Len ailure to act mav occasionallv amount to an oer: or example. ailure to
assert a right or remedv mav amount to an oer to abandon it.
35
But inactiitv is onlv likelv to hae this
eect when combined with other circumstances indicating that A has the necessarv intention: inactiitv
alone is usuallv too equiocal to gie B reasonable grounds or thinking that A is making an oer to him.
36


1he essential eature o an oer is that the person making it must actuallv or objectielv, intend to be
bound without urther negotiation. bv a simple acceptance o his terms. 1hus there is no oer where the
owner o a house. in response to an enquirv rom a person who wishes to buv it. states the price at which
he might be prepared to sell:
3
nor een where the owner wishes to sell and inites oers at or about a
speciied price. In the latter case he is said to make an initation to treat`. and he is not bound to accept
the highest or anv other oer. In border-line cases it is obiouslv hard to determine with what intention
the statement was made: but the diicultv is mitigated in two wavs. lirst. it is enough to show that the
statement was reasonablv understood bv the person to whom it was addressed as indicating an intention
to be bound: and secondlv. the character o certain requentlv-recurring tvpes o statements is settled bv
rules o law. at anv rate in the absence o clear eidence o contrarv intention.

1hus it is generallv accepted in Lngland that a displav o price-marked goods in a shop-window. or on the
sheles o a sel-serice shop. is usuallv no more than an initation to treat.
38
1he oer in such a case
comes rom the customer. An indication o the price at which petrol is to be sold at a illing station is.
similarlv. onlv an initation to treat.
39
Likewise. adertisements in newspapers or in tradesmen`s circulars
are commonlv held not to amount to oers.
40
1hese rules mav applv een though the person making the
statement calls it an oer: a shop`s special oer` mav well be nothing more than an initation to treat. But
it should not be supposed that all displavs and adertisements are onlv initations to treat. 1hev can be

34
Morav r |virer.ity Cottege attora t^o 2) |1993| 4 LLR 18. (A.
35
.var et Cie . r Marive )rav.oceav ta. )be ptevaia vv |1981| OB 694 see now Arbitration Act 1950. s 13A. as inserted bv
the (ourts and Legal Serices Act 1990. s 102,: Cottiv r Dv/e ot !e.tviv.ter |1985| OB 581.
36
avvab tvvevtbatt |1983| 1 A( 854: .ttiea Marive )rav.port ta r 1ate ao Rio Doce ^aregacao .. )be eoviaa. D 1985, 2 All
LR 96: Cebr 1av !eetae cbeepraart/avtor 1 r Cia ^ariera ea Orievt . |198| 2 Llovd`s Rep 223: ooa Corpv ot vaia r
.vtcti.o bippivg Corpv |1998| 2 All LR 513.
3
Cib.ov r Mavcbe.ter City Covvcit |199| 1 All LR 92.
38
Pbarvacevticat ociety ot Creat ritaiv r oot. Ca.b Cbevi.t. |1953| 1 OB 401.
39
..o Petrotevv ta r Cv.tov. ava ci.e Covr. |196| 1 \LR 1 at 5. 6. 11.
40
Partriage r Crittevaev |1968| 2 All LR 421.
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2
oers i the intention to be bound is suicientlv clear: or example. where a notice in a shop window
stated that we will beat anv 1V.price bv ]20 on the spot`.
41
A notice displaved at the entrance to an
automatic car park has likewise been described as an oer. presumablv because no urther act o
acceptance on the part o the proprietor was contemplated ater the customer droe in.
42
lor the same
reason. adertisements o rewards or the return o or example, lost propertv are commonlv held to be
oers. Similarlv. in Cartitt r Carbotic vo/e att Co |1893|
43
the manuacturers o carbolic smoke balls
promised to pav ]100 to anv person who caught inluenza ater using the appliance as directed: and thev
added that thev had deposited ]1000 with a named bank shewing our sinceritv in the matter`. It was held
that the adertisement was an oer.

It is a common commercial practice to ask or tenders` or the purchase or sale o goods. or or the
supplv o serices. In this situation. the person asking or tenders normallv makes an initation to treat:
the oer comes rom the person making the tender. \here the tender is or an indeinite amount e.g. or
so much coal. not exceeding 1.000 tons. as vou mav order`, it constitutes a standing oer which mav be
accepted rom time to time as speciic quantities are ordered.
44
1he person to whom a tender is made is
normallv ree to accept or reject it as he pleases.
45
1his general rule is. howeer. qualiied in a number o
wavs. lirst. the initation or tenders mav indicate that the best tender will be accepted: the initation will
then be an oer and the best tender which complies with its terms will amount to an acceptance. giing
rise to a contract.
46
Secondlv. the terms o the initation mav bind the person making it at least to consider
though not to accept, such a tender.
4
1hirdlv. in the case o tenders or certain public works. the
reedom o the bodv seeking the tenders is restricted bv legislation. the object o which is to preent
unair discrimination in the award o such contracts between contractors rom member states o the
Luropean Union.
48


In the case o auction sales. no oer or sale is made bv the adertisement o the auction:
49
nor bv putting
the goods up or bidding. 1he oer is made bv the bidder and accepted bv the auctioneer in the
customarv manner. i.e. usuallv bv the all o the hammer`.
50
Len where the auction is expresslv said to be
without resere` there is no contract o sale i the auctioneer reuses to knock the goods down to the
highest bidder: though it has been held that the auctioneer was liable or breach o a separate undertaking
that the auction would be without resere.
51


41
R r !arric/.bire Covvty. e p obv.ov |1993| A( 583 at 588.
42
)borvtov r boe ave Par/ivg ta |191| 2 OB 163 at 169.
43
|1893| 1 OB 256.
44
Percirat r CC ..ytvv. ava Mevtat Deticievcy Covvittee 1918, 8 LJKB 6.
45
See pevcer r araivg 180, LR 5 (P 561: !ittiav acey tovv.tor) ta r Dari. |195| 1 \LR 932 at 939.
46
arreta vre.tvevt. ta r Royat )rv.t Co ot Cavaaa tC) ta |1986| A( 20.
4
tac/poot ava ytae .ero Ctvb ta r tac/poot orovgb Covvcit |1990| 3 All LR 25.
48
SI 1991269: SI 19912680: SI 1992329.
49
arri. r ^ic/er.ov 183, LR 8 OB 286.
50
Sale o Goods Act 199. s 52,.
51
!artor r arri.ov 1859, 1 L & L 309. contrast. in Scotland. evric/ r Macaovata ra.er c Co ta 1904, 6 l 850.
^it. oppe

28
In contracts or the carriage o passengers. manv iews hae been expressed on the question when and bv
whom the oer is made. At the one extreme. a railwav time-table has been held to be an oer:
52
and it has
been suggested that the act o running a bus constitutes an oer to intending passengers.
53
Another iew
is that the carrier does not make the oer until he issues the ticket. and that the contract is made when the
passenger keeps the ticket without objection.
54
or when he claims his seat.
55
\here a booking is made in
adance. the oer mav come rom the passenger. or it has been said that the contract is made as soon as
the carrier accepts` the booking.
56
or when he issues the tickets.
5
1here is no single rule which determines
the time when the contract o carriage is made: the question depends in each case on the wording o the
releant document and on the circumstances in which it was issued.

3.2.2 Acceptance and Counter-Offer
Assuming that an oer has been made. a contract comes into existence when the oer is accepted. 1o
accept an oer. the oeree must indicate his assent to the terms o the oer. le mav do this either
expresslv bv words o acceptance, or bv conduct. In most cases. the acceptance. no less than the oer.
contains a promise. 1he contract is then said to be a bilateral one. that is. one under which each partv
undertakes obligations: or example one partv agrees to delier goods and the other to accept and to pav
or them. 1here mav also be a unilateral contract. under which onlv one partv comes under an obligation.
1he stock examples are a promise bv A to pav ]100 to B. i B walks rom London to \ork: or one to pav
B ]l00 i he rerains rom smoking until he is 21. lere. onlv A undertakes an obligation: B does not
promise to do. or to rerain rom doing. anvthing.

1he most important rule with regard to an acceptance is that it must correspond with the oer. I it seeks
to qualiv or to arv the oer. it is ineectie as an acceptance: or example. an oer to sell 1.200 tons o
iron is not accepted bv a replv stating that the oeree will take 800 tons.
58
1riial ariations between the
terms o the oer and acceptance mav be disregarded: and the same is true o ariations which merelv
make express a term which the law would in anv eent implv.
59
Subject to these qualiications. a purported
acceptance which introduces dierent terms is not in law an acceptance but a counter-oer. As such it
mav hae two legal consequences. lirst. it rejects the original oer. so that the original oeree cannot
subsequentlv accept it: e.g. in the aboe example he cannot send a second letter accepting the oer to sell
1.200 tons. Secondlv. it amounts to a resh oer. which the original oeror who has now become the
oeree under the counter-oer, mav accept. A counter-oer mav be ollowed bv a urther
communication o the same character: and complicated negotiations mav take the orm o a long series o

52
Devtov r Creat ^ortberv Rty Co 1856, 5 L & B 860.
53
!it/ie r ovaov Pa..evger )rav.port oara |194| 1 All LR 258 at 259.
54
)borvtov r boe ave Par/ivg ta |191| 2 OB 163 at 169.
55
MacRobert.ov Mitter .irtive errice. r Cov ot tate )aatiov ot tate ot !e.terv .v.tratia 195, 8 ALR 131.
56
)be agte |19| 2 Llovd`s Rep 0.
5
Dittov r attic bippivg Co. )be Mi/bait ervovtor |1991| Llovd`s Rep 155 at 159.
58
)ivv r ottvav c Co 183, 29 L1 21.
59
ar/ r Ovtbraite |1991| 2 Llovd`s Rep 132 at 139.
|virer.ity ot avvorer Cevtre tor .pptiea ivgvi.tic. ava peciat avgvage. Ca.e. c Materiat.: vgti.b tor ar


29
counter-oers. alleged to hae culminated in a concluded agreement when one o the counter-oers is
inallv accepted without. or with onlv triial. ariations. In such a situation. the court must look at the
whole course o negotiations
60
to determine whether. and. i so. exactlv when the parties hae reached
agreement.

1he rules relating to counter-oers are particularlv important in the increasinglv common situation.
commonlv known as the battle o orms`. in which each partv sends the other a preiouslv prepared orm
containing the terms on which he is prepared to contract. lor example. a buver oers to buv goods on the
terms o his purchase orm` and the seller purports to accept the oer on the terms o his sales orm`. I.
as is probable. the terms o the orms dier since the one is drated in the buver`s. and the other in the
seller`s. interest, there is at this stage no contract. All that has happened is that the seller has made a
counter-oer. 1his counter-oer mav be accepted bv conduct when the buver takes delierv o the goods.
In that eent. there will be a contract on the terms o the seller`s orm.
61
On the other hand. the contract
would be on the buver`s terms i the original oer had come rom the seller. and had been ollowed bv a
buver`s counter-oer which had in turn been accepted bv the conduct o the seller. 1hus ictorv in the
battle o orms` normallv goes to the partv who ires the last shot. i.e. to the partv bv whom the last orm
in the series is despatched. But this is not inariablv true: or i that partv has. in his own last
communication. indicated his acceptance o the terms stated in the other partv`s orm. the contract will be
made on those terms.
62


3.2.3 Communication of Acceptance
As a general rule. an acceptance has no eect unless and until it is communicated to the oeror.
63
1his
means that the act o acceptance must be brought to the notice o the oeror. I the words o acceptance
are drowned bv an aircrat lving oerhead.` or spoken into a telephone which has gone dead. there is no
contract.
64
1he reason or this rule is that it might be unjust to the oeror to hold him bound i he did not
know that his oer had been accepted. On the other hand. no injustice is normallv caused to the oeree
bv holding that there is no contract. In the cases put. he knows at once that there has been a ailure o
communication. so that he can take steps to retriee the situation bv making a second attempt to
communicate the acceptance. lor the purpose o the present rule. the acceptance need not be
communicated to the oeror personallv. It is suicient to communicate it to an agent authorised to
receie it. such as a companv`s senior oicial. Obiouslv. leaing a message with a porter would not
suice.


60
v..ey r orveyPayve 189, 4 App (as 311.
61
See riti.b Roaa errice. r . 1 Crvtcbtey ta |196| 2 All LR 85 at 8 and |1968| 1 All LR 811 at 81.
62
vtter Macbive )oot Co ta r CettO Corpv tvgtava) ta |199| 1 All LR 965.
63
rogaev r Metropotitav Rty 18, 2 App (as 666: riv/ibov ta r tabag tabt vva tabtrarevbavaet.ge.ett.cbatt vb |1983| 2 A( 34.
64
vtore. ta r Mite. ar a.t Corpv |1955| 2 OB 32 at 333.
^it. oppe

30
1here are three exceptions to the general rule that an acceptance must actuallv be communication. 1he
irst is that there mav be a contract when the ailure in communication is in some sense due to the ault. or
at anv rate to the act or omission. o the oeror himsel.
65
1his would be the position i the oeror did
not hear words o acceptance spoken into a telephone simplv because. at the crucial point. he had put the
telephone down without telling the oeree that he was doing this. 1he second exception arises where the
terms o the oer expresslv. or bv implication. dispense with communication o acceptance. 1his is oten
the position where the oer inites acceptance bv conduct.
66
lor example. in Cartitt r Carbotic vo/e att
Co the plainti accepted the deendants` oer bv simplv using the smoke ball: she did not at this stage
need to tell them that she had done so. 1he contract which arises between the issuer o a credit card and a
retailer to whom the card is presented bv a customer similarlv arises when the retailer deals with the
customer. een though the retailer has not at this stage communicated with the issuer o the card.
6
And
where goods are ordered rom a supplier. it mav be that the oer to buv can be accepted bv simplv
despatching the goods. 1he third exception relates to acceptances sent through the post. 1his is a complex
subject calling or separate treatment.

3.2.4 Postal Acceptance
1here are manv possible answers to the question when an acceptance sent bv post should become
operatie. At the one extreme. it is possible to take the iew that such an acceptance should onlv take
eect when it is actuallv brought to the notice o the oeror: at the other extreme. there is the iew that
such an acceptance should take eect as soon as it is posted. Intermediate possibilities are that the
acceptance should take eect when it is deliered to the oeror`s address. or when it should hae arried
there in the ordinarv course o post. Anv iew is bound to gie rise to the possibilitv o some hardship to
one or other o the parties. especiallv where the acceptance is lost or delaved in the post. I the contract is
complete on posting. the oeror mav be bound beore he knows o the acceptance: and this result mav be
justiied bv saving that he takes the risk o being placed in such a position bv initiating negotiations
through the medium o the post. But when it is recalled that a contract mav result rom a lengthv
sequence o counter-oers leading in the end to an acceptance. it will be obious that the inal oeror is
not necessarilv the person who has initiated the negotiations. I. on the other hand. the contract is not
complete till the acceptance reaches the oeror. then the oeree will ind it hard to know exactlv when he
can relv on haing secured a irm contract. 1here is no wav o reconciling these interests. 1he choice
between the arious solutions is an arbitrarv one and can onlv be justiied on grounds o conenience.
Len this justiication ineitablv takes the point o iew o one or other partv. Lnglish law looks primarilv
to the conenience o the oeree. and this is best sered bv holding that the acceptance takes eect as
soon as it is posted.
68
or i the letter o acceptance goes astrav or is delaved the oeree will usuallv not

65
Ibid.
66
1itot . r ^orett ta. )be avta Ctara |1993| 2 Llovd`s Rep 301 at 304.
6
ir.t port ta r arctay. av/ ptc |1993| 3 All LR 89 at 94.
68
.aav. r iva.ett 1818, 1 B & Ald 681: evtborv r ra.er |1892| 2 (h 2 at 33: rvver r Moore |1904| 1 (h 305 telegram. now
replaced or inland purposes bv telemessage,.
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31
know this until it is too late to make a urther communication. \here instantaneous` means o
communications. such as the telephone. telex. ax or L-mail. are used the rule will not applv i the ailure
in communication is such that the oeree knows o it in time to retriee the situation e.g. i a telephone
goes dead in the course o negotiations,:
69
but it should applv where he has no such knowledge or means
o knowledge e.g. i a axed acceptance reaches the oeror in a partlv illegible orm,.
1he rule with respect to posted acceptances is subject to a number o commonsense limitations. In the
irst place. it must be reasonable in all the circumstances to use the post.
0
Obiouslv it would not be
reasonable to replv bv second class mail to a telexed oer. or to send an acceptance bv post on the ee o
a postal strike. Secondlv. the general rule presupposes that the letter o acceptance is properlv addressed
and stamped. I this is not the case. anv loss due to resulting delav should all on the partv who is
responsible or the deect in the communication. 1his will normallv be the oeree: but it mav be the
oeror: or example. where he sends out an oer in which he ails to gie his own correct or complete
address. linallv. the general rule can be excluded bv the terms o the oer. which mav require the
acceptance to be actuallv communicated to the oeror. or at least to be deliered at his address.
1


\here the general rule does applv. it leads to a number o practical consequences. 1he irst. and bv ar the
most important. is to curtail the oeror`s power to withdraw his oer. 1he posting o an acceptance
concludes the contract een though. ater the acceptance has been posted but beore it has reached the
oeror. he communicates a withdrawal o the oer to the oeree: and een though. beore the acceptance
was posted. the oeror had posted a withdrawal which had not vet reached the oeree when the latter
posted the acceptance.
2
1he second consequence o the rule is to put the risk o accidents in the post on
the oeror: thus there is a good contract although the acceptance is delaved in the post:
3
and the same is
true een i it is lost in the post. so that it neer reaches the oeror at all.
4
1his is perhaps the case in
which the posted acceptance` rule can cause the greatest hardship to the oeror: but to hold that there
was no contract could cause equal hardship to the oeree. i he had acted in reliance on his posted
acceptance. 1hirdlv. the contract is taken to hae been made at the time o posting:
5
this mav be
important in order to determine the prioritv o two or more competing claimants each o whom has made
a contract aecting the same subject-matter.

It should not be supposed that the posted acceptance` rule necessarilv applies in all situations to which it
could logicallv be applied. 1he rule will not be applied where it would lead to maniest inconenience and
absurditv`:
6
in each new situation the question must be asked whether the rule produces. on balance. a

69
vtore. ta r Mite. ar a.t Corpv |1955| 2 OB 32: riv/ibov ta r tabag tabt vva tabtrarevbavaet.ge.ett.cbatt vb |1983| 2 A(
34.
0
evtborv r ra.er |1892| 2 (h 2.
1
otrett ecvritie. ta r vgbe. |194| 1 All LR 161.
2
yrve c Co r eov 1av )ievborev 1880, 5 (PD 344.
3
Dvvtop r iggiv. 1848, 1 lL (as 381.
4
ov.ebota ire ava Carriage .cciaevt v.vravce r Cravt 189, 4 Lx D 216.
5
Potter r avaer. 1846, 6 lare 1.
6
otrett ecvritie. ta r vgbe. |194| 1 All LR 161 at 166.
^it. oppe

32
conenient result.

1his is the test which should be applied to the diicult question whether a posted
acceptance can be reoked bv the oeree. i he manages actuallv to communicate the reocation to the
oeror beore the latter has receied the acceptance. One iew is that the oeree should be allowed to do
this. since the oeror cannot hae acted in reliance on an acceptance o which he is as vet unaware.
Another iew is that. just as the posting o the acceptance curtails the oeror`s power to withdraw the
oer. so it should curtail the oeree`s power to reoke his acceptance. lor. i it did not hae this eect. an
oeree could. on a luctuating market. post an acceptance and relv on it i the market moed in his aour:
while he could reoke it later on the same dav. i the market moed against him. Although the rule o
conenience exists to protect the oeree. it does not seem that he should be allowed to exploit it in this
wav.

1he Vienna (onention on (ontracts or the International Sale o Goods which has not vet been ratiied
bv the United Kingdom,. goerns not onlv the rights and duties o the parties to. but also the ormation
o. such contracts. Under the (onention an oer takes eect when it reaches` the oeree
8
and an
acceptance when it reaches` the oeror.
9
i.e. in both cases, when it is communicated to the addressee or
deliered to his address.
80
1hus there is no contract i the acceptance is lost in the post: but i the
acceptance is delaved in transmission. it is eectie. unless the oeror inorms the oeree promptlv on its
receipt that he regards the oer as haing lapsed.
81
Once an oer has become eectie. it cannot be
reoked ater the oeree had dispatched his acceptance:
82
this preseres the Lnglish position that a posted
acceptance preails oer a preiouslv posted withdrawal reerred to in the (onention as a reocation,.
An acceptance mav be withdrawn bv a communication which reaches the oeror beore or at the same
time as, the acceptance would hae become eectie
83
i there had been no such withdrawal.

3.2.5 Method of Acceptance Prescribed by Offer
An oer mav in his oer expresslv require the acceptance to be made in a certain wav. e.g. bv letter or
telex. Priva tacie. the oeree can then accept onlv in that wav. as the oeror has made the requirement or
his own protection: an attempt to accept it in some other wav amounts at most to a counter-oer.
84
1o
this rule there are. howeer. two exceptions. lirst. an acceptance made in a dierent manner mav be
eectie. i the manner actuallv adopted is no less eicacious rom the oeror`s point o iew: i.e. i it is in
eerv wav as quick and reliable as the prescribed method. Secondlv. allowance must be made or the act
that an oer is oten made on a orm supplied bv the oeree: or example where land is to be sold bv
tender and the seller requires tenders i.e. oers, to be made on printed orms issued bv him. lere the

riv/ibov ta r tabag tabt vva tabtrarevbavaet.ge.ett.cbatt vb |1983| 2 A( 34 at 41.


8
Article 151,.
9
Article 182,.
80
Article 24.
81
Article 212,
82
Article 161,
83
Article 22.
84
!e.terv tetric tta r !et.b Deretopvevt .gevcy |1983| OB 96.
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33
stipulation as to the manner o acceptance exists or the beneit o the oeree. so that the stipulation can
be waied bv him. at least so long as this does not prejudice the oeror.
85


3.2.6 Silence as Acceptance
An oer mav stipulate that it can be accepted bv silence. I the oeree makes no response to such an oer.
the general rule is that he is not bound. lor example. A mav write to B oering to buv B`s car. and adding:
I I hear no more about it. I shall consider it mine.` 1here is no contract i B simplv ignores the letter.
86
It
would obiouslv be undesirable to enable A to orce a contract on B bv ultimatum. or to oblige B to take
actie steps to aoid liabilitv. It is bv no means equallv obious that. in the aboe situation. A should not
be bound i B has acted in reliance on the oer: or example. i B has turned awav another oer to buv
the car. thinking that he had a contract with A. I A stood bv. knowing that B was about to act in this wav
in reliance on the oer. he might be estopped rom denving that there was a contract.
8


1he rule that there can be no acceptance bv silence` does not mean that it is alwavs necessarv to
communicate rora. o acceptance to the oeror. An acceptance mav be inerred rom the conduct o the
oeree. and communication o acceptance mav be dispensed with. \here this is the case. the acceptance
is said to be bv conduct rather than bv silence.
88
(onduct` here reers to some action on the part o the
oeree. so that mere inaction is not normallv suicient. It can amount to an acceptance onlv in the most
exceptional circumstances:`
89
e.g. where a dutv to speak`
90
was imposed on the oeree because he had
begun the negotiations bv soliciting the oer and then ailed to replv to it in circumstances leading the
oeror reasonablv to beliee that the oer had been accepted.
91


3.2.7 Acceptance Requires Knowledge of Offer
A person mav do an act which appears to amount to acceptance o an oer but be unaware o the oer:
or example. he mav gie inormation or which a reward has been adertised without knowing o the
adertisement. In such a case there is no agreement. and hence no contract. On the other hand. an act
done with knowledge o the oer can amount to an acceptance een though it was done primarilv with
some motie other than that o claiming the reward. 1hus. in Cartitt r Carbotic vo/e att Co.
92
the plainti
recoered the ]100. although she presumablv did not use the smoke ball with this aim in iew. but rather
to stae o the arious diseases against which the appliance was meant to gie protection.


85
Mavcbe.ter Dioce.av Covvcit tor avcatiov r Covverciat ava Ceverat vre.tvevt. ta |190| 1 \LR 241.
86
ettbov.e r ivaty 1862, 11 (BNS 869. 1863, 1 New Rep 401.
8
piro r ivterv |193| 1 \LR 1002 at 1011: but see airtive bippivg Corpv r .aav.ov |195| OB 180 at 189.
88
Robert. r ayrara |1828| 3 ( & P 432.
89
)be eoviaa. D |1985| 2 All LR 96: so ar as contra. )be Cotaev ear |198| 1 Llovd`s Rep 330 is open to doubt. ( )av/reaerei
.brev/eit Cvb r rabvit .. )be Mvttitav/ ot.atia |1988| 2 Llovd`s Rep 486 not a case o vere inaction,.
90
Rat.aviav Pi.tacbio Proavcer. Cooperatire r av/ evvi t|K) ptc |1993| 1 Llovd`s Rep 513 at 542.
91
Rv.t r .bbey ite ...vravce Co |199| 2 Llovd`s Rep 334 at 340: ad |198| 2 Llovd`s Rep 386 at 393.
92
|1893| 1 OB 256.
^it. oppe

34
One application o the rule. that a person can onlv accept an oer o which he knows. is to be ound in
cases o so-called identical cross-oers. I A writes to B oering to buv B`s car or ]5.000 and bv the
same post B writes to A oering to sell the car or ]5.000 there is. it is said. no contract.
93
\et it could be
argued that A and B were in agreement: and the probable reason or the rule is that parties to such a
correspondence would be let in some degree o uncertaintv. 1his is best resoled bv some urther
communication between them.

3.2.8 Unilateral Contracts
In the case o a bilateral contract. acceptance o the oer normallv takes the orm o a counter-promise
though this mav be inerred rom conduct,. and the moment o acceptance is. as a general rule. that o
the communication o the counter-promise. \here the contract is unilateral. howeer. there is no counter-
promise. 1he person to whom ]100 is promised i he walks rom London to \ork. or orbears rom
smoking until he is 21. does not promise to do these things. le can. without breach o contract. gie up
walking or start smoking at anv time ater he has begun to engage in the required course o conduct.
lence it could be argued that the person who promised the ]100 should likewise hae the power to
withdraw until the walk had been completed or the abstinence ullv accomplished: and in support o this
iew it was said that there had been no acceptance until the terms o the promise had been ullv
perormed. In some cases such a solution mav indeed be in accordance with the intention o the parties
and a perectlv air one. It is. or example. sometimes possible to regard a contract between a prospectie
seller o a house and an estate agent as a unilateral one. bv which the agent is to receie his commission i
he eects a sale. without promising to do anvthing to that end.
94
In such a case it might be perectlv
reasonable to allow the owner to reoke without liabilitv. een i the agent had taken steps in perormance.
such as adertising the propertv: But the ground or this iew would be that such a result was in
accordance with the intention o the parties. and not that the contract was unilateral: the position would
be exactlv the same where the agent had made some promise e.g. to use his best endeaours to eect a
sale. or to adertise the propertv at his own expense
95
, . so that the contract would be bilateral. More
generallv. in the case o a unilateral contract. the parties` intention would not be to allow the promisor to
reoke without liabilitv ater part perormance bv the promisee e.g. walking as ar as Doncaster,: and the
preailing iew is that the oer o a unilateral contract cannot be reoked ater part-perormance bv the
promisee.
96
1his iew. howeer. presupposes that the contract is simplv to pav a lump sum or the
perormance o the act. It mav amount to a promise to make a number o pavments in response to each
o a series o acts: and in that case the promise is reocable. in the sense that the promisor can escape
liabilitv in respect o acts done ater but not beore, reocation. An illustration o this possibilitv is

93
)ivv r ottvav c Co 183, 29 L1 21 at 28.
94
See vor ta.tbovrve) ta r Cooper |1941| A( 108 at 124.
95
Cbri.topber t) c Co r ..ig |1948| \N 461: obv McCavv c Co r Por |194| 1 \LR 1643 at 164: c evtatt. or.tey ava
atary r 1icary |1931| 1 KB 253.
96
See rrivgtov r rrivgtov ava !ooa. |1952| 1 KB 290 at 295: Davtia ta r ovr Mittbav/ ^ovivee. ta |198| (h 231 at 238:
arreta vre.tvevt. ta r Royat )rv.t Co ot Cavaaa tC) ta |1986| A( 20 at 224.
|virer.ity ot avvorer Cevtre tor .pptiea ivgvi.tic. ava peciat avgvage. Ca.e. c Materiat.: vgti.b tor ar


35
proided bv so-called continuing guarantees.
9
1hese are contracts bv which A promises B to guarantee
liabilities which ( mav incur to B. 1he contract between A and B is unilateral since B does not promise A
to gie credit to (. I the guarantee is in respect o a single transaction between Band ( it is indiisible`
and A cannot withdraw ater B has begun to gie credit to (. But the position is dierent i the guarantee
is gien in respect o a series o loans each o which is a separate transaction. In such a case the guarantee
is diisible` and A can reoke it with respect to loans made bv B ater notice o reocation.

3.2.9 1ermination of Offer
Lents mav occur ater an oer has been made which bring it to an end so that it can no longer be
accepted. 1his happens when the oer is withdrawn bv the oeror. or rejected bv the oeree: and it mav
happen bv lapse o time. bv the occurrence o a condition. or bv the death or superening incapacitv o
one o the parties.

Withdrawal
An oeror mav withdraw his oer at anv time beore the oeree has accepted it.
98
1his is so een though
the oer expresslv states that it will be let open or a ixed time. Generallv such a statement is |.| a
promise without consideration and it thereore does not bind the oeror.
99


1he law does. howeer. limit the oeror`s power to withdraw his oer. bv insisting that the withdrawal
must be communicated to the oeree. 1hus i A has oered to sell his car to B. he cannot withdraw the
oer simplv bv changing his mind or bv selling the car to (: B must hae notice o the withdrawal. B mav
not actuallv be able to get the car i it has in the meanwhile been deliered to (,: but i B accepts A`s
oer beore its withdrawal has been communicated to him. he is entitled to damages or breach o
contract against A. lor the purpose o the present rules the notice o withdrawal must. as a general rule.
actuallv reach the oeree`s address. Once this happens. the withdrawal takes eect. een though the
oeree does not actuallv read it. at least i it arries during business hours.
100
But a mere posting o the
withdrawal is not enough. 1hus. i A posts a withdrawal. and B then posts an acceptance beore the
withdrawal has reached him. there is a contract between A and B.
101
1his is so. een though there mav
neer hae been anv agreement between them. 1he rule is an important one: i it did not exist. no oeree
could saelv act in reliance on his acceptance o an oer: or the possibilitv that a withdrawal was in the
post could not be ruled out. So long as the withdrawal is communicated to tbe otteree. it need not. howeer.
be communicated by tbe otteror. It suices i the oeree gets to know rom a reliable source that the oeror
no longer intends to deal with him on the terms o the oer.
102


9
See Ottora r Darie. 1862, 12 (BNS 48: toya. r arper 1880, 16 (h D 290.
98
Ottora r Darie. 1862,. supra.
99
Dic/iv.ov r Doaa. 186, 2 (h D 463: or exceptions. see (ompanies Act 1985. s 82,.
100
( )eva Co ta r Reivavte )rav.oceavia ^aregaciov .. )be rivve. 195, OB 929.
101
yrve c Co r eov 1av )ievborev 1880, 5 (PD 344.
102
Dic/iv.ov r Doaa. 186, 2 (h D 463.
^it. oppe

36
In some exceptional cases. a withdrawal mav be eectie een though it is neither actuallv communicated
to the oeree. nor deliered to his address. lor example. a withdrawal deliered to the oeree`s last
known address would probablv be eectie i he had moed without notiving the oeror. And where an
oer is made bv public adertisement. a withdrawal is probablv suicient i it is published in such awav
that it is reasonablv likelv to come to the attention o those who saw the original adertisement.
103


Rejection
Rejection terminates an oer. so that. once an oeree has rejected it. he cannot then change his mind and
accept it. In this connection. it is important to recall that a counter-oer amounts to a rejection. lence an
oeree who makes a counter-oer therebv loses the power o accepting the original oer.
104
But an oer
is not rejected bv a mere enquirv whether the oeror would be prepared to depart rom its terms. A
distinction is drawn between a rejection including a counter-oer, and a request or inormation.
105
lor
example. an oer to sell at a stated price would not: be rejected bv an enquirv whether the seller was
prepared to gie credit. or een whether he was prepared to reduce the price. so long as the enquirv was
merelv exploratorv`.
106
1he distinction between such a request or enquirv and a rejection depends on the
intention o the oeree. as reasonablv understood bv the oeror.

Although there is no authoritv on the point. it seems that a rejection does not take eect on posting. but
onlv when it reaches the oeror. Until this happens. the oeree can still accept. proided he does so bv a
communication which oertakes the posted rejection. e.g. bv telephone. 1he oeror is not prejudiced bv
this rule. since a rejection gies him no rights and since he cannot act in reliance on it until he actuallv
receies it.

Lapse
An oer mav come to an end bv lapse o time. I a time limit or acceptance is expresslv stated in the oer.
it clearlv cannot be accepted ater that time. I no time is stated. the oer lapses at the end o a reasonable
time. \hat is a reasonable time is a question o act. depending on such circumstances as the nature o the
subject-matter and the general market conditions in which the oer is made.
10


Occurrence of condition
An oer mav be so expressed as to come to an end on the occurrence o a condition: or example. where
a tender to sell goods rom time to time is made subject to the seller`s being himsel able to obtain

103
( bvey r | 92 Us 3 185,.
104
yae r !revcb 1840, 3 Bea 334.
105
terev.ov. aqve. c Co r Mceav 1880, 5 OBD 346.
106
Cib.ov r Mavcbe.ter City Covvcit |199| 1 All LR 92 at 98.
10
Rav.gate 1ictoria otet Co ta r Movtetiore 1866, LR 1 Lxch 109.
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adequate supplies. \here an oer is made to buv goods. there is an implied term to the eect that it
cannot be accepted ater the goods hae been seriouslv damaged.
108


Death and incapacity
One possible iew is that an oer cannot be accepted ater the death o either partv. since the act o
death makes it impossible or them to reach agreement. But the strict application o such a rule might
cause hardship. Suppose that A makes a continuing oer to B. to guarantee loans to be made bv B to (. I
A dies and B in ignorance o this act makes a urther loan to (. he might well be prejudiced bv a rule that
A`s death automaticallv terminated the oer. and it seems that in such a situation B is entitled to sue A`s
estate on the guarantee.
109
It is alwavs open to A`s personal representaties to terminate the oer bv giing
notice o withdrawal in the ordinarv wav. Similarlv. there seems to be no reason whv an oer should
necessarilv be brought to an end bv the death o the oeree. since acceptance bv the personal
representaties o the oeree would not normallv prejudice the oeror. O course there are certain
contracts which are personal` in the sense that thev would be terminated bv the death o either partv: or
example. contracts o personal serice. It is obious that oers to enter into such contracts must be
terminated bv the death o either partv.

Superening incapacitv mav be inoluntarv. as where one o the parties becomes mentallv ill. 1he question
whether an acceptance made ater this had happened bound either partv. would depend on the general
rules goerning contracts with mental patients. Superening incapacitv mav also be oluntarv. as where a
companv changes its objects so that the contract to which the oer relates is no longer within the powers
o the companv. \here the companv is incorporated under the (ompanies Act 1985. contracts which all
outside those objects or outside the power o its board o directors are. in general. neertheless eectie
in aour o a person who deals with the companv in good aith.
110
But a member o the companv can
bring an action to restrain it rom doing an act bevond its capacitv.
111
lence i an oer had been made to
the companv and it had then changed its objects so that the resulting contract would be bevond its powers.
a member could bring an action to restrain the companv rom accepting the oer. But such an action does
not lie to restrain the companv rom ulilling legal obligations arising rom acts o the companv preious
to the change o objects.
112
1he member`s remedv seems thereore not to be aailable where it is the
companv which makes an oer and the oer is then accepted ater the companv had changed its objects
so as to put the resulting contract bevond its powers. 1he companv can o course withdraw the oer
beore acceptance unless it has bound itsel not to do so bv granting a binding option. \here a
corporation is created bv Roval (harter. its contractual capacitv is not limited bv the terms o the (harter.
so that alteration o those terms would not aect the legal eects o oers made bv or to the corporation.

108
ivavcivg. ta r tiv.ov 1962, 3 All LR 386.
109
See Covttbara r Ctevevt.ov 189, 5 OBD 42 at 46.
110
(ompanies Act 1985. ss 351, and 35A1, as substituted bv (ompanies Act 1989. s 108,.
111
Ibid. ss 352, and 4,.
112
Ibid.
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38
\here a corporation is created bv special statute. contracts not authorised bv that statute are vttra rire. and
oid. Its contractual capacitv can be reduced bv changes in that statute: and such a change can thereore
terminate oers made bv or to the companv to enter into a contract o the kind in question.

3.2.J0 Cases in which there is No Identifiable Offer and Acceptance
In certain exceptional situations. there is undoubtedlv a contract. but the process o reaching agreement
cannot readilv be analvsed into the normal stages o oer and acceptance.
113
lor example. the parties mav
negotiate through the same broker who eentuallv obtains their consent to the same terms. lere it is erv
hard to sav which o them has made the oer and which the acceptance.
114
Again. it has been held that the
competitors in a regatta enter into a contract. not onlv with the club which organises the race. but also
with each other. to the eect that each will abide bv the regatta rules.
115
In this situation. too. it is ar rom
clear exactlv when each competitor makes his oer to the others and when that oer is accepted.

3.2.JJ Vague or Incomplete Agreements
So ar. we hae been concerned with what mav be called the mechanics o agreement. Len where the
rules relating to oer and acceptance are complied with. the agreement mav still suer rom deects.
making it impossible or erv diicult or the courts to determine on exactlv what terms the parties were
agreed. 1he task o the courts in this area is a delicate one. 1hev do not. on the one hand. want to impose
on the parties terms to which thev neer agreed. or. as it is put. to make a contract or the parties`. On the
other hand. thev will oten do their best to uphold looselv worded agreements. 1hev recognise that
businessmen oten do not hae the time to work out the terms o their agreements in meticulous detail:
and that it mav be desirable to aoid too much precision and rigiditv in commercial agreements. i these
are to stand up to the stresses o changing economic circumstances.

It is common to ind in commercial contracts reerences to air qualitv` or to terms which are usual` in
the course o business at a particular place. Such ague terms do not necessarilv itiate the contract: their
want o precision mav be made good bv reerence to anv releant trade custom or to the standard o
reasonableness.
116
1his standard can be applied een to ill gaps on which the contract is completelv silent.
lor example an agreement or the sale or or the supplv o goods mav amount to a contract een though
no price is agreed: in that eent. a reasonable price must be paid.
11
On the other hand. ailure to agree on
such an important point as the amount to be paid mav indicate that there was no concluded contract.
118

Len where this is the case. a partv doing work under the agreement mav be entitled to a reasonable

113
^er Zeatava bippivg Co ta r . M attertbraite c Co ta |195| A( 154 at 16: Cib.ov r Mavcbe.ter City Covvcit |199| 1 \LR
294 at 29: )be Mvttitav/ ot.atia |1988| 2 Llovd`s Rep 486 at 491.
114
Pagvav p. r eea Proavct. ta |198| 2 Llovd`s Rep 601 at 616.
115
Ctar/e r art ot Dvvrarev ava Movvtart. )be atavita 189, P 248: ad sub nom Ctar/e r Dvvrarev A( 59.
116
ita. c Co ta r .rco. ta 1932, 14 L1 503.
11
Sales o Goods Act 199. s 82,: Supplv o Goods and Serices Act 1982. s 151,.
118
Covrtvey ava airbairv ta r )otaivi ro. totet.) ta |195| 1 All LR 16.
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recompense: but. as there is no contract he would not be liable in damages. e.g. or delav in doing the
work.
119


\here a contract contains ague or meaningless proisions on matters which are not considered to be o
ital importance. those proisions can be ignored and the rest o the contract enorced. But i the ague
proisions relate to a ital matter and cannot be resoled in anv o the wavs described aboe. there is no
contract. 1his was. or example. held to be the position in a case in which an agreement was made to
supplv a an on hire-purchase terms`:
120
an agreement in these terms cannot gie rise to a contract i such
ital matters as the amount o the deposit and the number o instalments are let unspeciied.

Len greater diicultv arises where the parties are unable or unwilling to reach agreement on certain ital
points and proide that these are to be settled bv uture agreement. \hen long-term contracts are made in
times o luctuating markets. it is natural to ind the parties reluctant to bind themseles to ixed prices.
But an agreement or the sale o goods at a price to be agreed` is in a sense more diicult to enorce than
one which simplv savs nothing about the price. In the latter case. the courts can claim merelv to be
supplementing the agreement o the parties bv determining the amount o the reasonable price which the
buver has to pav. In the ormer case thev mav be oerriding the agreement. i thev substitute their own
notion o what was reasonable or a igure which the parties might hae reached ater urther bargaining.
Neertheless the courts will uphold such an agreement where it is clear that the parties intended to be
bound bv it
121
and thev mav do so een though so important a matter as the price is let to be decided bv
subsequent agreement.
122
But where the parties do not intend to be bound beore thev hae agreed some
ital outstanding point such as the price, there is no contract beore thev hae settled that point.
123
1heir
agreement at this stage is a mere agreement to negotiate or a contract to make a contract`: and in law such
an agreement is too uncertain to hae anv binding orce`.
124
Nor can this deect be cured bv implving into
the agreement a term to the eect that the parties will negotiate in good aith since such a term is itsel too
uncertain to be enorced.
125
1he uncertaintv lies in the act that a dutv to negotiate would be inherentlv
inconsistent with the position o a negotiating partv`
126
who must be ree to adance his own interest:
hence it is impossible in this context to deine the requirements o good aith` with anvthing like precision.

Parties who cannot agree on all ital points at once mav proide some machinerv or standard or resoling
such matters: e.g. thev mav sav that prices or rents are to be ixed bv reerence to market alues. or bv
arbitration. or bv the decision o a designated third partv. or een bv the decision o one o the parties

119
riti.b teet Corpv r Cteretava riage c vgiveerivg Co ta |1984| 1 All LR 504.
120
C cavvett c ^epber ta r Ov.tov |1941| A( 251.
121
Pagvav p. r eea Proavct. ta |198| 2 Llovd`s Rep 601.
122
otey r Cta..iqve Coacbe. |1934| 2 KB 1: 1oe.t .tpive vtertraaivg Cvb r Cberrov vtervatiovat Oit Co ta |198| 2 Llovd`s Rep 54:
Diayvi Corpv r .ttavtic ive. ava ^arigatiov Co vc |1988| 2 Llovd`s Rep 108 price aaiv.tvevt to be agreed,.
123
L.g. May ava vtcber r R |1934| 2 KB 1n.
124
Covrtvey ava airbairv ta r )otaivi ro. totet.) ta |195| 1 All LR 16 at 20.
125
!attora r Mite. |1992| 2 A( 128.
126
Ibid at 138.
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40
themseles. as where interest rates are let to be ixed bv the lender.
12
Such agreements are binding.
though thev mav be aoided i the agreed machinerv breaks down: e.g. i the third partv ails to make the
aluation.
128
loweer. i the agreed machinerv is merelv subsidiarv and incidental`
129
its ailure to operate
is not atal to the ormation o a contract. In one such case. a partv tried to deeat the agreed machinerv bv
reusing to appoint a aluer. 1he louse o Lords upheld the agreement. construing it as one to sell or a
reasonable price which could be determined bv the court itsel.
130


In the cases just considered. ital matters such as the price are let oer or urther agreement. 1here is a
urther group o cases in which the parties mav hae reached agreement on all ital terms. but stipulate or
the execution o some ormal agreement. Such a stipulation mav hae a number o dierent purposes.
lirst. it mav be eidence o the intention o the parties not to be bound till the ormal agreement is drawn
up and dulv executed.
131
1his is the purpose o the stipulation commonlv ound in agreements or the sale
o land that the agreement is subject to contract`. 1he normal
132
eect o this phrase is that neither partv
is bound until ormal contracts are exchanged`
133
a process that mav be completed bv the telephone.
134

Secondlv. the purpose o the stipulation mav simplv be to proide written eidence o the conclusion o
the contract and o its terms. In such a case. there is a good contract een though the ormal contract has
not been executed.
135
A third possible purpose o the stipulation is that the parties. haing agreed on
essentials. look to the ormal document or the solution o points o detail which mav be quite important.
such as the delierv dates. precise technical speciications and terms o pavment. At a time o increasing
complexitv in contractual relations. it is this third purpose which gies rise to the greatest diiculties and
as to which the authorities. as vet. proide the least guidance. Probablv there are three actors on which
the existence o a contract in these cases primarilv depends: the intention o the parties. the degree o
importance o the terms let to be settled bv the ormal agreement. and the extent to which the parties
hae acted on the inormal agreement.
136


3.2.J2 Conditional Agreements
1he expression condition` is used in the law o contract in a conusing arietv o senses |.|. At this point.
we are concerted with a condition in the sense o an eent on which the operation o the contract depends.
but which neither partv is bound to bring about. lor example. a person mav agree to buv a machine on
condition that it proes. on trial. to hae a stated capacitv: or to buv a house on condition that he can raise
a mortgage o a stated amount. In these cases the agreement is said to be subject to a covaitiov preceaevt. 1he

12
ovbara )ricity ivavce ta r Patov |1989| 1 AllLR 918.
128
Sales o Goods Act 199. s 91,.
129
Matpa... Re. toya. av/ ptc r Matpa.. |1985| (h 42 at 50.
130
vabroo/ )raaivg .tate ta r ggtetov |1983| 1 A( 444.
131
L.g. riti.b teet Corpv r Cteretava riage c vgiveerivg Co ta |1984| 1 All LR 504.
132
I.e. unless the contrarv intention is made extremelv clear. as in .tpev.tor ta r Regatiav Propertie. ptc |1985| 2 All LR 545.
133
Cbittivgrortb r .cbe |1924| 1 (h 9.
134
Dovb r .a. |1980| (h 548.
135
Ro..iter r Mitter 188, 3 App (as 1124.
136
L.g. Pagvav p. r eea Proavct. ta |198| 2 Llovd`s Rep 601: C Percy )revtbav ta r .rcbitat vter ta |1993| 1 Llovd`s Rep 25:
)be Ctaay. t^o 2) |1994| 2 Llovd`s Rep 401.
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eect o such a condition depends upon its construction. It mav mean that. until the eent occurs. neither
partv is bound at all. so that each partv is ree to withdraw rom the transaction without legal liabilitv.
13
A
second. more common. interpretation would be that until the eent occurred neither partv was bound to
render the principal perormance promised bv him e.g.. to pav the price o goods. or to delier them, but
that. in the meantime he must not deliberatelv do anvthing to preent the occurrence o the eent: or
example in the irst case put aboe. neither must impede the trial o the machine.
138
It mav een be that
one partv is bound to do his best to bring about the eent without absolutelv undertaking to do so: or
example where goods are sold subject to export licence`. In such a case one o the parties usuallv the
exporter, will hae to make reasonable eorts to obtain the licence: but i. in spite o his haing done so.
no licence is obtained. neither he nor the other partv will be under anv liabilitv.
139
le will be liable onlv i
the terms o the contract. on their true construction. amount to an absolute undertaking that a licence will
be obtained.
140


A contract mav be subject to a condition subsequent. that is. it mav come to an end when a uture eent
occurs: or example. where a ather contracts to pav his daughter an allowance until vou marrv`.


13
Pyv r Cavpbett 1856, 6 L & B 30.
138
Mac/ay r Dic/ 1881, 6 App (as 251.
139
Re .vgtoRv..iav Mercbavt )raaer. |191| 2 KB 69.
140
As in Pagvav p. r )raaa Oceav )rav.portatiov . |198| 3 All LR 565.
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42
4. 1ort
J4J


4.J Introduction
4.J.J What is a 1ort?
1ort` is the lrench word or wrong. Other terms deried rom this root are the adjectie tortious`. the
aderb tortiouslv` and torteasor`. the name or one who commits a tort., \et. just as all dogs are animals
but not all animals are dogs. so all torts are wrongs but not all wrongs are torts. 1o make sense o this
conundrum. we must distinguish a, ciil wrongs rom criminal wrongs: b, equitable ciil wrongs rom
common law ciil wrongs: and c, the dierent arieties o common law ciil wrongs. some o them
known as torts`. some going under dierent names.

Criminal and Civil Wrongs
I I punch vou in the ace. that is both a crime and a ciil wrong both the crime and the tort batterv,.1he
one eent gies rise to two legal responses. lirst. I mav be prosecuted bv the state or committing the
criminal oence and. i ound guiltv bv the court. made to pav a ine to the state. or sent to prison or
punished in some other wav. Secondlv. I mav be sued bv vou in the ciil courts the (ountv (ourts or the
ligh (ourt, and. i ound liable. ordered to pav vou a sum o monev damages, or to change mv
behaiour in the uture bv an injunction,. Unlike criminal proceedings. ciil actions are brought bv
indiiduals. not generallv, the state. lurthermore. it is those indiiduals. again not the state. who stand to
beneit directlv rom a court judgement against the deendant. Because o this. and because the deendant
who is held liable is not exposed to the stigma o a criminal coniction. ciil actions are possible in manv
circumstances in which no criminal liabilitv arises.. It should be noted. howeer. that not all crimes gie
rise to concurrent tortuous liabilitv: this is true especiallv o so called ictimless crimes e.g. possession o
drugs, which hae no eect upon other people.

Some would press the distinction between criminal and ciil law urther and sav that the criminal law is
designed to punish the deendant while the ciil law aims onlv to indicate the plainti`s rights. but we
should not pursue doctrinal puritv at the expense o practical conenience. Medieal Lnglish law certainlv
knew no such puritv. (riminal proceedings were originallv instituted bv indiiduals. or the law
enorcement arm o the sate did not deelop until much later. lurthermore. manv proceedings we would
now recognise as ciil were at least semi-criminal in character: the unsuccessul deendant would be
punished as we as being obliged to pav damages. while the deendant who ailed to appear in court would
not onlv lose her case but would also be liable to arrest and imprisonment |.|. In iew o these
beginnings. and o the pragmatic nature o Lnglish lawvers throughout historv. it is no surprise that the
modern criminal and ciil law borrow elements rom each other. 1hus a criminal court mav order the
guiltv partv to pav compensation to the ictim under s. 35 o the Powers o (riminal (ourts Act 193 as

141
Mullis. A. & Oliphant. K.. )ort.. Macmillan Press Ltd. London. 199. pp. 1-4. 9-29. 145-153. 219-221. 251-263
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well as passing a criminal sentence. (onerselv. the damages awarded bv a ciil court mav include a
punitie element designed not to indicate the plainti`s rights but to punish the deendant or her
wrongdoing |.|.

Lquitable and Common Law Wrongs
\ithin the categorv o ciil wrongs. historv obliges us to make a undamental distinction between wrongs
at common law and wrongs in equitv see Baker. 1990,. Beore 185. two distinct court svstems existed
side bv side. 1he irst to eole had been the common law courts o the King`s Bench and (ommon Pleas.
1he law applied in these courts was embodied in the orms o action`. the erbal ormulas written on the
writs` purchased rom the (hancellor`s oice (hancerv, which authorised citizens to commence an
action. In order to mount successul proceedings. litigants o the period had to ensure that the orm o
words inscribed on the writ matched the substance o their complaint. In the case o the writ o trespass
to the person. or example. this required them to establish that. in the lorid language o the writ. thev had
been beaten. wounded and maltreated bv orce and arms. against the King`s peace. \ith the passage o
time. the orms o action became more or less set in stone. Such rigiditv in the law led to injustice because
litigants were denied the remedv thev desered simplv because none o the existing orms o action
coered their case.

I was to remedv this injustice that the equitable jurisdiction was deeloped. 1he common law`s response
to the same problem was to recognise the lexible action on the case`: een this did not go ar enough and
the writ svstem was inallv abolished bv the Judicature Act 183., Some o the ictims o such injustice
took to petitioning the King or help. and in time these petitions came to be passed on to the (hancellor
who proed willing in some cases to grant relie when the common law proided no remedv. 1he grant o
this relie was at irst purelv discretionarv. but ater a while a bodv o established rules and principles
eoled. A primarv concern o these rules was to lav down the circumstances under which propertv.
whose oicial legal` title was held bv one person. should be held on trust or another. 1hev thus laid the
oundation or our modern law o trusts. lor present purposes. the rules are signiicant or their
recognition o a class o equitable wrongs. Lxamples o equitable wrongs might include an emplovee
stealing` a trade secret rom her emplover in the hope o selling it to a rial. or a companv director
accepting a bribe to ensure that the companv enters into contracts with a particular supplier. 1he remedies
that equitv gae in respect o these wrongs diered rom the normal common law remedv o damages: the
emplovee might be subjected to an injunction orbidding her to pass on the trade secret to anvone else.
while the companv director might be required to account or` hand oer, the alue o the bribe she
receied.

1his equitable jurisdiction. and these equitable remedies. grew up outside the common law courts:
howeer. the Judicature Act 185 used` the two separate svstems so that. rom that time on. both
common law and equitable principles were applied bv the same courts. Neertheless. and despite the
^it. oppe

44
iews o manv judges wholike Lord Diplock in |vitea cievtitic otaivg. ta. r. vrvtey orovgb Covvcit
|198| A( 904beliee that the waters o the conluent streams o law and equitv hae surelv mingled
now`. most commentators continue to regard breach o equitable dutv as entirelv distinct rom the ciil
wrongs at common law |.|. 1he result is not onlv that the subjects are treated in dierent textbooks
breach o equitable dutv being consigned to books on equitv and trusts,. but also that certain equitable
remedies. particularlv the account o proits made bv a wrongdoer. are generallv held not to be aailable in
respect o common law wrongs c. Birks.1991,.

1orts and Other Common Law Wrongs
(ommon law wrongs themseles come in dierent arieties. breach o contract. tort and unjust
enrichment being the most amiliar. 1his subdiision o the common law wrongs was unknown to the
earlv common law and onlv took shape closer in time to the modern era when lawvers looked to impose
some order on the manv disparate orms o action that historv had bequeathed them see Baker. 1990,.
1heir irst moe was to seize upon a bodv o law dealing with undertakings or promises and. sharplv
dierentiating breach o promise rom other orms o wrong. to deelop a set o rules that we recognise
todav as our law o contract. A comparable. and ongoing. endeaour has been the attempt to ormulate a
law o unjust enrichment bv drawing together a arietv o causes o action. manv o which had preiouslv
been considered to be rather anomalous appendages to the law o contract. torts or equitv see Birks.
1985,. 1he common element o such cases is that the deendant has acquired a beneit which the law
requires her to surrender to the plainti. 1he law o tort is what is let behind ater cases o breach o
contract and unjust enrichment hae been withdrawn rom the list o common law wrongs and mav be
accuratelv described as our residual categorv o ciil liabilitv` Gilmore. 194,.

4.J.2 1he Classification of 1orts
1he status o the law o tort as our residual categorv o ciil liabilitv means that it consists o a rag-bag` o
disparate cases which erv oten hae little connection with one another. 1his act makes eorts to
elaborate general principles o tort. in order to match the general principles o the law o contract which
hae been deeloped oer the vears. raught with diicultv. 1he considerations raised bv a road traic
accident are erv dierent rom those raised bv a smear campaign o a public igure conducted in the
popular press. which in turn are erv dierent rom those raised bv industrial action taken bv disgruntled
emplovees. All these incidents might lead to liabilitv in the law o tort. but it would be impossible to applv
the same principles in relation to each. So when we turn to modern works on the law o tort. we ind
chapters dealing with principles said to be common to all torts intermixed with discussions o the
diergent rules applicable to dierent kinds o case. but thev mav come under a heading under which a
number o dierent torts are grouped together. 1hese grouping mav be justiied on the grounds that the
torts are all releant in a particular context e.g. Liabilitv or Land and Structures`,. that thev all sere to
protect a particular interest e.g. Interests in Reputation`,. that thev can all be traced back to one o the
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earlv common law`s orms o action e.g. 1respass`,. or that thev share a common mental element e.g.
Intentional \rongs`,.

1he dierent torts that we can identiv todav oten oerlap with one another in their application. 1hev are
a mixture o hand-me-downs` rom the age o the orms o action. abolished bv the Judicature Act 183.
whose names recall the names o the original writs e.g. trespass,. and later creation . both judicial and
legislatie. 1hese later judicial creations were attempts to draw together dierent instances o liabilitv
recognised under the old orms o action. 1he most notable o these is the tort o negligence. which
united a arietv o instances o liabilitv or damage caused bv negligence and was recognised as a ullv-
ledged tort in its own right in 1932 |.|. Since that time it has done the work o a number o older torts
and has become the aoured head o claim or manv plaintis. being the purest expression recognised bv
the law o the moral notion that wrongdoers should pav or their wrongs.


4.2 Negligence: Introduction
4.2.J Origins
It all began in August 1928. 1he scene was Minchella`s cae in Paislev. near Glasgow. A certain Mrs
Donoghue had gone in or a drink. 1his is her storv: a riend bought her a bottle o ginger beer: she began
to drink it: then. as her riend topped up her tumbler. she watched in horror as the decomposed remnants
o a snail loated out with the ginger beer: she suered shock and an upset stomach. Now Mrs
Donoghue`s injuries mav seem o less than earth-shattering importance to us todav. but it is to these
unlikelv beginnings that the modern law o negligence owes its existence. Mrs Donoghue. unable to sue
Minchella in the law o contract because she had not bought the bottle hersel there was no priitv o
contract`,. brought an action in tort against the manuacturer. Steenson. She alleged that he had been
negligent in producing the drink. In response. Steenson denied that those injured bv a negligentlv
manuactured product had anv right to recoer damages outside certain exceptional categories e.g.
inherentlv or patentlv dangerous products like irearms,. 1he case reached the louse o Lords. which
ound in aour o Mrs Donoghue. It was not a unanimous decision: two powerul dissents were
registered. Neither was the decision o the majoritv clear and unambiguous in eerv respect: was it to be a
rule conined to deectie products or was it to hae wider eect 1odav. howeer. its status is
unquestioned and its eect plain or all to see. or Dovogbve r. terev.ov |1932| A( 562 is the case that
changed the ace o the law o negligence.

Up to that time. liabilitv or negligent conduct had been recognised onlv in certain careullv deined
circumstances. or example where innkeepers were careless in looking ater propertv in guests` rooms or
where ire damage resulted rom negligence. 1he courts allowed actions or damages in these cases
because-thev said-the special circumstances gae rise to a dutv o care`. 1he signiicance o Dovogbve r.
terev.ov and o Lord Atkin`s speech in particular. was that it sought to univ these disparate duties o care
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in a single general theorv. Lord Atkin noted pp. 59-80, that the courts had preiouslv been engaged
upon an elaborate classiication o duties` as thev existed in arious act situations. and urged them to
recognise that the dutv which is common to all the cases where liabilitv is established must logicallv be
based upon some element common to the cases where it is ound to exist`. le continued:

|I|n Lnglish law there must be and is some general conception o relations giing rise to a dutv o care.
o which the particular cases ound in the books are but instances. 1he liabilitv or negligence.is no
doubt based upon a general public sentiment o moral wrongdoing or which the oender must pav.
But acts or omissions which anv moral code would censure cannot in a practical world be treated so as
to gie a right to eerv person injured bv them to demand relie. In this wav rules o law arise which
limit the range o complainants and the extent o their remedv. 1he rule that vou are to loe vour
neighbour becomes in law: \ou must not injure vour neighbour. and the lawver`s question: \ho is mv
neighbour receies a restricted replv. \ou must take reasonable care to aoid acts or omissions which
vou can reasonablv oresee would be likelv to injure vour neighbour. \ho then. in law. is mv
neighbour 1he answer seems to be persons who are so closelv and directlv aected bv mv act that I
ought reasonablv to hae them in contemplation as being so aected when I am directing mv mind to
the acts or omissions which are called in question.`

4.2.2 1he Llements of the 1ort of Negligence
Negligence is a common word. used to reer to a species o ault. and it is oten treated as svnonvmous
with carelessness`. But since Dovogbve r. terev.ov it has also become the name o a sel-contained tort with
its own internal ramework o rules. 1he elements o liabilitv in the tort o negligence can be outlined as
ollows:
a, the deendant must owe the plainti a avty ot care:
b, the deendant must be in breacb o that dutv i.e. she must be careless or negligent,:
c, this must cav.e the plainti loss:
d, that loss must not be too revote i.e. it must be oreseeable,:
e, the deendant must not be able to raise anv aetevce to the plainti`s claim.

1his list o requirements makes it plain that it can be misleading simplv to talk o liabilitv or negligence.
In the irst place. in negligence which is descended rom the action on the case and is not a orm o
trespass, damage is the gist o the action: there is no liabilitv or negligence in the air`. onlv or negligentlv
causing harm. Secondlv. tactvat re.pov.ibitity or negligentlv causing harm cannot be equated with tegat
re.pov.ibitity: it is not eerv harmul result o one`s negligence or which one must pav damages. Although
Lord Atkin appealed in his neighbour principle` to our moral intuitions which suggest that there should
be general recognition o tortious liabilitv or harm caused bv negligence. he himsel stressed the need or
rules o law.which limit the range o complainants and the extent o their remedv`. Legal responsibilitv
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is thus determined bv the concepts o the dutv o care and remoteness o damage and to a certain extent
also causation,. and bv the law relating to deences. Because thev hae the unction o limiting legal
responsibilitv or negligentlv inlicting injurv. those concepts and the arious deences can be thought o
as limitation mechanisms or control deices in the tort o negligence. keeping liabilitv or actual,
negligence within acceptable bounds.

1he distinction between questions o actual and legal responsibilitv is not clear-cut-een the actual
questions o negligence. i.e. breach o dutv. and causation are determined within a ramework o legal
principle. while the dutv` question raises actual issues o oreseeabilitv and not just issues o law-but it
is neertheless useul or pedagogical purposes. It also has great practical importance. een in a modern
svstem in which questions o act are determined bv a judge rather than a jurv. lirst. questions o law mav
be dealt with in preliminarv proceedings in adance o trial o the actual issues. therebv saing
unnecessarv expense in calling witnesses. compiling expert reports. etc. especiallv where it transpires that
the plainti has no case in law,. A erv common example o this is the striking-out application. in which
the deendant makes a pre-emptie attack against the plaintis claim. contending that it would reeal no
arguable case in law een i the plainti were to make out all the actual allegations: tvpicallv the assertion
is that there was no dutv o care. Secondlv. rights o appeal are more extensie in relation to questions o
law than questions o act. Although manv o the kev questions o what we hae been calling actual`
responsibilitv in realitv relate to inerences rom primarv acts e.g. as to whether the case exercised bv the
deendant was reasonable,. and can hence be attacked on grounds other than that thev were plainlv
wrong`. the judge`s conclusions on such questions are entitled to respect and should not be rejected simplv
because the appellate court might itsel hae rule dierentlv. (onerselv. in relations to questions o law.
the appellate court must impose its own iew. 1he treatment o certain preconditions o liabilitv. especiallv
that o dutv`. as questions o law rather than act enables appellate courts to keep the scope o liabilitv
within acceptable bounds. not onlv bv oerruling errant decisions but also and more importantlv bv
setting down binding guidelines or use in subsequent cases.

4.2.3 Negligence: A Developing 1ort
In terms o legal historv. the tort o negligence is o comparatielv recent birth and it remains in its
adolescence. It lacks manv o the characteristics o a mature svstem o law. most notablv a settled
conceptual apparatus and a set o reasonablv clear boundaries. In manv areas. the question whether
liabilitv mav arise has vet to be determined. (ourts encountering unprecedented claims must grapple with
concepts o dutv. causation. remoteness. etc., which all too oten lack anv ixed meaning and all too rarelv
proide a clear answer as to whether a claim should be allowed. 1his has produced a certain scepticism
about the wav judges decide cases in the tort o negligence. Some eel that conceptual language is used
inconsistentlv and instrumentallv. in order to gie an aura o legal respectabilitv to decisions reached on
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non-legal policv, grounds. 1he ollowing. tvpicallv bold expression o this iew comes rom a judgment
o that leading judicial sceptic. Lord Denning:

1he truth is that all these three. dutv. remoteness and causation. are all deices bv which the courts
limit the range o liabilitv or negligence.As I said recentlv. it is not eerv consequence o a
wrongul act which is the subject o compensation.` 1he law has to draw a line somewhere. Sometimes
it is done bv limiting the range o persons to whom a dutv is owed. Sometimes it is done bv saving that
there is a break in the chain o causation. At other times it is done bv saving that the consequence is
too remote to be a head o damage. All these deices are useul in their wav. But ultimatelv it is a
question o policv or the judges to decide.` avb r. Cavaev C |1981| OB 625. 636,

Lord Denning perhaps puts his case too stronglv. or it would be wrong to suggest that judges eel ree to
disregard rules laid down in preious cases and to impose whateer solution thev eel is warranted in
terms o public policv. Neertheless. his words stand as a useul indication o the imprecision that
surrounds the use o the kev concepts in the tort o negligence and o the scope that this imprecision
allows or judges to gie eect to policv choices.

\e should not ignore. howeer. the extent to which there exists a bedrock o settled principle in the
modern law o negligence. 1he tvpical cases o eervdav legal practice-cases o accidents on the roads or
at the workplace-gie rise to ew legal diiculties: the issue between the parties is more likelv to concern
questions o act than questions o law. In this. the core` area o negligence. the law is simplicitv itsel: the
person who carelesslv injures the person or propertv o another is liable to compensate or that loss.
lactual responsibilitv is equated with legal responsibilitv. Onlv when we moe rom the core to peripheral
areas o the tort-to cases inoling more problematic orms o loss. or omissions rather than positie
acts. etc. -do the principles become more complex as the courts struggle to contain liabilitv within
acceptable bounds. to limit the scope o legal responsibilitv or actuallv causing harm through a lack o
care. lere the language o the law reports becomes more abstract and conceptual. and it is diicult to
discriminate between the technical-legal emplovment o certain terms and their purelv rhetorical use. In
some cases technical-legal deinitions o some precision do in act exist. or mav at least be posited. albeit
that thev can onlv be identiied ater stripping awav seeral lavers o unnecessarv and unreealing
abstraction |.|. Llsewhere. howeer. especiallv where a case presents noel eatures. the analvsis mav
amount to no more than a ague appeal to what is reasonable in the circumstances |.|. 1his perhaps is
ineitable in an area o law that is still relatielv voung and that continues to deelop rapidlv. and. ar rom
being cause or exasperation or despair. accounts in large measure or the ascination o the subject. or
studv o the modern law o negligence ineitablv entails a creatie engagement with the principles o
justice and the concerns o public policv that shape the law in the light o changing social conditions.

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4.2.4 1he Objectives of Negligence Law
Negligence law mav be seen as embodving the principle o correctie justice. i.e. that one who wrongullv
causes another harm should correct that injustice bv the pavment o compensation see especiallv \einrib.
1995,. But. although the righting o wrongs` must be regarded as the central tenet o the tort o
negligence and perhaps o all liabilitv in priate law,. it is possible to identiv certain secondarv objecties
which sere to temper the law`s pursuit o its goal o correctie justice: to see the modern law o
negligence as concerned purelv with correctie justice is to pav scant regard to its ibrant complexitv. 1he
law is shaped not onlv bv principle` but also bv considerations o public policv which luctuate in the light
o changing social conditions.

A number o secondarv objecties mav be posited or the tort o negligence: indication o the plaintis
rights. denunciation o the deendant`s wrong. education o people generallv as to proper standards o
saetv. the peaceul settlement o disputes arising rom the accidental inliction o injurv. etc. or a reiew.
see \illiams. 1951,. But the two most oten cited objecties o negligence law are compensation and
deterrence. and it is these that we now proceed to consider in more detail.

Compensation
1he proision o compensation is so central to the tort o negligence that it is oten regarded as tbe
objectie o the tort. rather than just as one o its policies. \et it is helpul to iew it as one o manv
policies pursued in the tort o negligence. or this emphasises that in some circumstances the goal o
compensation mav be outweighed bv other. competing considerations.

It is important to be clear what we mean when we talk o compensation. (ompensation` is the goal both
o the tort o negligence and o the social securitv svstem. but the meaning o the term aries according to
the context. In the ormer. it is part o a regime o correctie justice: in the latter. part o a regime o
distributie justice. 1his is relected in two wavs. lirst. the pavment o compensation in negligence
depends on a inding that the plainti`s loss was caused bv ault. In the context o social securitv. ault is
generallv irreleant. 1hus we can sav that. whereas tort damages are awarded as a matter o indiidual
responsibilitv. social securitv beneits are paid as a matter o social responsibilitv. Secondlv. the amount o
compensation paid diers according to the context. Damages are designed to compensate or to..: the sum
awarded is that needed to restore the plainti. as nearlv as possible. to the position she would hae been
in but or the deendant`s negligence. Social securitv beneits. in contrast. aim to compensate or veea. and
beneits are generallv limited to the amount necessarv to sustain the recipient at an acceptable standard o
liing.

1his is not to sav that there has been no cross-ertilisation between the notions o compensation adopted
in negligence and social securitv respectielv. Lntitlement to social securitv pavments mav depend on
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proo that the claimant`s injuries were caused bv someone else`s ault. 1his is the case under the (riminal
Injuries (ompensation Scheme. which proides or the pavment o compensation in respect o personal
injurv attributable to a criminal oence. the arrest o a suspect or the preention o crime. Awards.
ormerlv assessed in the same wav as common law damages. are now made according to a scale o taris
but remain broadlv comparable to damages in terms o size and can be seen as compensating or loss
rather than need see (riminal Justice Act 1995,. It is also conceiable that social securitv beneits should
be earnings-related rather than lat-rate as has in the past been the case,. and to that extent should
compensate or loss rather than need. but the current political desire to constrain public expenditure and
encourage priate proision against the misortunes o lie has resulted in the abolition o the earnings-
related components o such beneits see Ogus et at.. 1995. pp. 20-21,.

(onerselv. concerns o social responsibilitv that underpin the compensation objecties o the social
securitv svstem hae also had an inluence on the deelopment o the law o tort. both in the tort o
negligence and elsewhere. (ertain tort doctrines the icarious liabilitv o emplovers or the torts o their
emplovees |.|: liabilitv or the breach o strict statutorv duties imposed in the workplace |.|, sere to
direct losses awav rom indiiduals towards deendants whose deep pockets` can easilv bear the cost.
irrespectie o whether thev were personallv at ault. 1he inluence o such considerations is eident
within the tort o negligence itsel. notablv in the obsered tendencv o the courts to characterise
blameless and ineitable slips as negligence in contexts in which liabilitv insurance is widespread |.|. It is
also eident in relation to manv recent attempts to expand the scope o the dutv o care into areas in
which popular sentiment has it that the ictim` should take responsibilitv or what has occurred. 1hus the
so-called socks` school o psvchiatrv expresses scepticism about the expansion o liabilitv or psvchiatric
illness. relving upon its deining tenet that suerers are best let to pull their socks up` |.|. 1he
recognition o duties to protect plaintis rom third parties. or een rom themseles. has also led to
claims that we are undermining indiidual responsibilitv and inculcating a pass the buck` mentalitv in a
something or nothing` societv |.|. All in all. according to some commentators. we hae deeloped a
culture o complaintis` \eir. 1996. p. i,.

1his popular backlash against the increasing modern tendencv to pass the buck` and chase the bucks`
should not. howeer. diert attention awav rom societv`s need to deelop a humane. eicient and
coherent svstem o compensating those whose suering and needs warrant redress. \e mav doubt
whether principles o tort law. in which negligence plavs the central role. properlv merit a place in such a
svstem. 1ort mav be seen adrit in the high (s`costlv. cumbersome. conrontational and capricious. It is
too expensie. takes too long. concerns itsel with winning` rather than justice`. and limits compensation
to those injured bv another`s ault denving it to the ictims o pure` accidents regardless o the seeritv o
their condition or the extent o their needs,. Perhaps compensation should be regarded as a matter
exclusielv o social responsibilitv. and the releant principles o tort law swept awav to make space or
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the introduction o a no-ault` compensation scheme oering real compensation to all those suering
rom disabilitv |.|.

Deterrence
Doubts as to negligence`s success as a mechanism o compensation has prompted some to seek an
alternatie justiication or it in the goal o deterrence see (ane. 1993. pp. 361-94,. 1hev argue that
negligence has a major role to plav in the preention o accidents as actual and potential liabilitv costs
encourage people to take care in what thev do and drie them awav rom actiities that are raught with
unnecessarv danger. 1hus. i a manuacturer o izzv drinks thinks that the installation o an Acme Patent
Snailguard on her bottling line will reduce the risk o consumers suering ood poisoning. and hence
reduce her liabilitv costs. she will hae an incentie to go ahead and hae one itted. And i she inds that
she still cannot produce the drink without an unacceptable risk o ood poisoning. the liabilities she incurs
mav orce her to raise her prices to an extent that she is no longer be able to compete in the market
market deterrence`: see (alabresi. 190. ch. 5,. Nowadavs. these arguments are most oten made bv
lawver-economists. who iew the law as a series o incenties designed to promote a state o economic
eiciencv in which the wealth o societv is maximised: the unction o negligence thus becomes the
deterrence o ivetticievt accidents` Posner. 1992. p. 202: emphasis added,. Looking at the law exclusielv in
these terms is regarded bv manv as morallv disreputable. because it pavs no heed to indiidual rights.
which ought not to be sacriiced in the public interest see Dworkin. 1986. ch. 8,. In anv case. attempts to
ealuate the law o negligence in terms o economic eiciencv tend to relv on too manv unproen
assumptions or them to be o signiicant practical alue albeit that occasional reerences to the economic
analvsis literature will be made in the course o this book,.

Again the kev question is whether negligence law. and tort law as a whole. perorms a deterrent unction
better than its alternaties. It seems odd at irst sight that the threat o liabilitv. which operates indirectlv
and materialises onlv where a lack o care results in injurv. should be more eectie than the direct` or
speciic` deterrence achieed bv regulation backed up with criminal sanctions: the latter not onlv allows
or liabilitv een where the carelessness ortuitouslv causes no harm but also enables standards o sae
conduct to be speciied with a measure o precision quite bevond negligence. where the injunction is
simplv to take such care as is reasonable in the circumstances. Against this. it mav be said that goernment
regulation cannot deal with the complexitv and constantlv luctuating circumstances o lie and attaches
insuicient importance to indiidual iews as to what risks are worth running see (alabresi. 190. ch. 6,.
No conclusie iew can be drawn rom the eidence on this question or an excellent surev. see Dewees
and 1rebilcock. 1992,. but it mav perhaps be accepted that such eidence as there is at least puts the
burden o proo on those who would replace negligence liabilitv or personal injurv with a no-ault
compensation scheme to show that other mechanisms are in act apt to maintain the standards o saetv
that modern societv demands.

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4.3 1he Duty of Care Concept
4.3.J 1he Nature of the Duty of Care Concept
Not eerv instance o carelessness resulting in harm will lead to liabilitv in the tort o negligence. Liabilitv
is limited bv reerence to arious control deices` see 4.2.2, o which the most signiicant is the dutv o
care. 1he existence o a dutv o care is a precondition o liabilitv in negligence: it is what transorms tactvat
responsibilitv or carelesslv causing harm into tegat responsibilitv.

In most cases encountered in practice-e.g. cases o oreseeable phvsical injurv suered in accidents at
work or on the roads-the existence o a dutv o care is clearlv established bv the authorities see .tcoc/ r.
Cbiet Cov.tabte ot ovtb Yor/.bire Potice |1992| 1 A( 310. 396,. 1he onlv question will be whether the
deendant was in act negligent in breach o dutv,. In such cases. the moral imperatie expressed bv Lord
Atkin in his neighbour principle` points towards liabilitv on the part o the person at ault. But other cases
are not so simple. Deiation rom the tvpical` case o phvsical injurv caused bv positie act. bv one priate
indiidual to another. mav necessitate a more cautious approach to the imposition o liabilitv and bring the
dutv o care issue into plav`. 1here mav be doubts as to whether the loss o which the plainti complains
should be recoerable especiallv in cases o nerous shock or pure economic loss,. Alternatielv. the
doubts might concern the wav in which the plainti`s loss was caused especiallv where it was caused bv
the deendant`s statement or omission,. Or thev might be associated with the identitv o the plainti or
the deendant.

1he dutv o case concept marks out these cases-the atvpical` cases-in which it cannot be taken or
granted that the deendant should pav compensation or carelesslv caused harm. And it determines
whether the special circumstances o these cases are suicient to outweigh the plainti`s moral claim to
compensation. lence the concept`s role is essentiallv negatie. As Lord Go stated in vitb r. ittterooa.
Orgavi.atiov ta |198| 1 A( 241. 20. nowadavs.the broad general principle o liabilitv or oreseeable
damage is so widelv applicable that the unction o the dutv o care is not so much to identiv cases where
liabilitv is imposed as to identiv those where it is not.` 1he dutv o care question is raised in order to denv
liabilitv een where the deendant was at ault. and een i that ault caused the plainti harm. 1o denv the
existence o a dutv o care is to aord an immunitv rom liabilitv no matter how culpable the deendant`s
carelessness and no matter how seere the plaintis injurv.

4.3.2 1esting the Lxistence of a Duty of Care
low do we know when a dutv o care will be recognised 1he courts hae waered between dierent
approaches to this question. In Caparo vav.trie. r. Dic/vav |1990| 2 A( 605. 616. Lord Bridge described
the traditional` approach as ollows:

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1raditionallv the law ind the existence o the dutv in dierent speciic situations each exhibiting its
own particular characteristics. In this wav the law has identiied a wide arietv o dutv situations. all
alling within the ambit o the tort o negligence. but suicientlv distinct to require separate deinition
o the essential ingredients bv which the existence o the dutv is to be recognised.`

lrom the time o Dovogbve r. terev.ov |1932| onwards. howeer. the courts began to ind the traditional
approach wanting. It lacked anv basis in principle or determining whether the rontiers o liabilitv should
be pushed orward or the status quo maintained. So judges sought to identiv the principles bv which the
existence o a dutv o care could be determined. 1he most celebrated o such attempts was made bv Lord
\ilberorce in deliering the opinion o the louse o Lords in .vv. r. ovaov orovgb ot Mertov |198| 1
A( 28. 51-2. le laid down a two-stage test o the existence o a dutv o care:

lirst one has to ask whether. as between the alleged wrongdoer and the person who has suered
damage. there is a suicient relationship o proximitv or neighbourhood such that. in the reasonable
contemplation o the ormer. carelessness on his part mav be likelv to cause damage to the latter. in
which case a prima acie dutv o care arises. Secondlv. i the irst question is answered airmatielv. it
is necessarv to consider whether there are anv considerations which ought to negatie. or to reduce or
limit. the scope o the dutv or the class o person to whom it is owed or the damages to which a
breach o it mav gie rise.`

1he most natural interpretation o this passage is that it lavs down a presumption o liabilitv where the
deendant. in the circumstances in which she ound hersel. ovgbt to bare tore.eev injurv to the plainti. 1his
will be a question o act to be determined bv the judge in eerv case. 1he judge then has to decide
whether to decline to allow recoerv on grounds o public policv. 1his interpretation o Lord
\ilberorce`s words ound aour or some time and judges soon began to adopt them enthusiasticallv as
a simple test o liabilitv in negligence. More recentlv. howeer. the courts hae expressed dissatisaction
with this wav o proceeding and hae sought to return to the more traditional approach see 4.3.3,.

So what was wrong with Lord \ilberorce`s two-stage test Lssentiallv. the problem was that it proided
the springboard or a massie expansion o liabilitv in the late 190s and earlv 1980s. 1he irst stage o
Lord \ilberorce`s test presented no hurdle to litigants at all: almost eervthing in lie is oreseeable i vou
hae a iid enough imagination. 1his meant that the courts were let to restrict the scope o negligence
liabilitv bv reerence to the policv considerations that come in at the second stage o Lord \ilberorce`s
test. In act. judges proed unwilling to let matters o public policv stand in the wav o their
understandable svmpathv or the injured plaintis in court beore them. As Lord Keith subsequentlv
obsered:

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|A| too literal application o the well-known obseration o Lord \ilberorce in .vv..mav be
productie o a ailure to hae regard to. and to analvse and weigh. all the releant considerations in
considering whether it is appropriate that a dutv o care should be imposed` Rortivg r. )a/aro Propertie.
ta |1988| 1 A( 43. 501,.

In kev cases such as Mcovgbtiv r. O`riav |1983| 1 A( 410 and vvior oo/. r. 1eitcbi Co ta |1983| 1 A(
520 |.|. judges roundlv condemned the policv arguments which were said to justiv restrictions on
liabilitv. 1he loodgates` argument. in particular. was dismissed in caalier ashion I beliee that the
loodgates` argument.is. as it alwavs has been. greatlv exaggerated`: Mcovgbtiv r. O`riav |1983| 1 A(
410. 442 per Lord Bridge,. 1he results were twoold. lirst. the courts recognised duties o care in a wide
arietv o situations that had not preiouslv come beore the courts e.g. in respect o wrongul birth`
|.|,. Secondlv. and more controersiallv. judges used the two-stage test as a justiication or recognising
duties o care whose existence had preiouslv been denied. therebv casting aside restrictions on liabilitv
that had been recognised in older cases particularlv in the context o economic loss and omissions,. It
was this tendencv that raised judicial concerns and prompted a retreat rom .vv.`. As Lord Brandon
commented in eigb c ittirav ta r. .tia/vov bippivg Co ta |1986| A( 85. 816. it was an error to use
the test as a means o re-opening issues relating to the existence o a dutv o care long settled bv past
decisions.`

4.3.3 Caparo and the Retreat from Anns
Unhappv with the wav things were shaping up. the courts hae recentlv sought to reerse manv o the
deelopments o the last 20 or so vears. 1his has led to a so-called retreat rom .vv.`. In a series o
decisions beginning perhaps with Peaboay Dovatiov vva r. Par/iv.ov |1985| A( 210,. appellate courts hae
warned against the lazv reliance upon too simple a test o liabilitv. and hae sought to reassert limits on
the scope o liabilitv that had traditionallv been recognised in the caselaw e.g. in the areas o pure
economic loss. nerous shock and omissions,. 1hese decisions insist that the questions o oreseeabilitv`
and proximitv`. apparentlv run together bv Lord \ilberorce. be clearlv separated out. and that the
concept o proximitv` be dissected to reeal the narrower but still identiiable principles.|on the basis o
which|.liabilitv can properlv be imposed` vitb r. ittterooa. Orgavi.atiov ta |198| 1 A( 241. 280 per
Lord Go.

1he decisie moment in this trend is the speech o Lord Bridge in Caparo vav.trie. r. Dic/vav |1990|. le
suggested that the courts should abandon the modern approach` o looking or a single general principle
underlving the tort o negligence and reert to the more traditional categorisation o dierent speciic
situations as guides to the existence. the scope and limits o the aried duties o care which the law
imposes.` lis approach depended upon a pragmatic` ealuation o the exact circumstances o eerv
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indiidual case. but certain general obserations could be made. In a passage o great inluence and
importance. he explained pp. 61-18,:

|I|n addition to the oreseeabilitv o damage. necessarv ingredients in anv situation giing rise to a dutv
o care are that there should exist between the partv owing the dutv and the partv to whom it is owed a
relationship characterised bv the law as one o proximitv` or neighbourhood` and that the situation
should be one in which the court considers it air. just and reasonable that the law should impose a
dutv o a gien scope on the one partv or the beneit o the other. But.the concepts o proximitv
and airness embodied in these additional ingredients are not susceptible o anv such precise deinition
as would be necessarv to gie them utilitv as practical tests but amount in eect to little more than
conenient labels to attach to the eatures o dierent speciic situations which. on a detailed
consideration o all the circumstances. the law recognises pragmaticallv as giing rise to a dutv o care
o a gien scope.`

Although it appears that Lord Bridge intended in this passage to rule out anv simple recourse to a
uniersal ormula or determining the existence o a dutv o care. subsequent decisions hae seen him as
laving down a three-stage test or recognition o the dutv under which the questions o oreseeabilitv`.
proximitv` and airness. justice and reasonableness` replace the two stages o the discredited .vv. inquirv.
1his trend is probablv too well-established to buck at the present time. but it should be remembered that
the so-called Caparo principles` represent no more than useul shorthand in indicating the tvpes o actors
which determine whether a dutv o care will arise. 1he principles proide a traveror/ or inquirv into the
existence o the dutv bv identiving the principal stages o that inquirv. but thev do not in themseles
proide a practical test o the dutv: treating them as such is likelv to produce the same liabilitv beaneast`
as was alleged to ollow rom .vv.. 1he ollowing explanations are an attempt to rationalise the role o
the kev elements o the Caparo principles. although it must be admitted that judicial expressions o opinion
on this issue are oten inconsistent and that this attempt thereore has elements o prescription as well as
mere description.

4.3.4 Ioreseeability
1he plainti must all within the class oreseeablv put at risk bv the deendant`s ailure to exercise due care
and skill. 1he same requirement is expressed bv the principle that the deendant must be in breach o a
dutv o care owed to the plainti rather than to the world at large: what singles the plainti out is that she
is the oreseeable ictim o the deendant`s wrong. 1he rule seres to weed out claims bv those whose
injurv is regarded as ar-etched in much the same wav as the !agov Movva rule o remoteness o damage
weeds out heads o damage that are unoreseeable consequences o the deendant`s negligence |.|. Like
the remoteness rule. the issue it raises is primarilv one o act. and this stage o the dutv inquirv mav
thereore be termed the question o actual dutv` c. (lerk and Lindsell. 1995. para. -0,.
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1he most amous elaboration o the principle that onlv the oreseeable plainti can recoer damages in
negligence is that attempted bv (ardozo J in the New \ork (ourt o Appeals in Pat.grat r. ovg .tava Rait
Roaa 1928, 248 N\ 339. 1he case also proides a memorable example o the principle at work. Mrs
Palsgra was injured while standing on a railwav platorm. Some distance awav. commotion had broken
out as a man. running to catch a train that was beginning to moe out o the station. was pushed on board
bv railwav emplovees. 1he man dropped an innocuous-looking paper package. It contained ireworks and
exploded on contact with the ground. 1he shock waes caused heav metal scales near to Mrs Palsgra to
topple oer and strike her. causing her injurv or were scales merelv knocked oer in the commotion See
Prosser. 1953., 1he majoritv o the court held that the railwav emplovees owed her no dutv o care as she
was not a oreseeable ictim o their negligence: it was not enough that their negligence exposed others to
risk. (ardozo J explained:

One who seeks redress at law does not make out a cause o action bv showing without more that there
has been damage to his person. I the harm was not willul |sic|. he must show that the act as to him
had possibilities o danger so manv and so apparent as to entitle him to be protected against the doing
o it though the harm was unintended. 1he ictim does not sue deriatielv. or bv right o subrogation.
to indicate an interest inaded in the person o another. le sues or a breach o a dutv owing to
himsel.`

In Lngland. the same sort o analvsis was soon to appeal to the louse o Lords in the case o ovrbitt r.
Yovvg |1943| A( 92. 1he case arose out o a motorcvcle accident. 1he motorcvclist. John \oung. who was
killed. had been traelling too ast and had collided with a car a short distance awav rom where Mrs
Bourhill was standing. She was eight months pregnant at the time o the accident and she alleged. in a suit
against \oung`s estate. that hearing the impact and seeing the pool o blood aterwards had caused her to
miscarrv and to suer nerous shock. 1he louse o Lords ound that \oung could not hae been
expected to oresee that anvone in the position o Mrs Bourhill could be aected. 1he ollowing words o
Lord \right call to mind the reasoning o (ardozo J p. 108,:

John \oung was certainlv negligent in an issue between himsel and the owner o the car which he ran
into. but it is a dierent issue whether he was negligent ri.ari. the appellant. She cannot build upon a
wrong to someone else. ler interest. which was in her own bodilv securitv. was o a dierent order
rom the interest o the owner o the car.`

1he requirement o the oreseeable plainti has attracted criticism on the grounds that. as between
innocent ictim and careless injurer. the equities aour the ormer see lleming. 1992. p. 143,. It mav also
be criticised in that the test o oreseeabilitv is easilv manipulated and mav sere merelv to obscure the
policv considerations that hae caused the courts to deelop the law as thev hae. One learned oerseas
obserer. a ormer President o the New Zealand (ourt o Appeal. has detected signs that the Lnglish
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(ourts are coming to speak o reasonable oresight in a deliberatelv artiicial sense` and has warned o the
need to take care lest the concept be emploved to conceal the act that the decision is one o policv rather
than one as to what was reasonablv oreseeable in act` ovtb Pacitic Mavvtactvrivg Co r. ^er Zeatava ecvrity
Cov.vttavt. c vre.tigatiov. ta |1992| 2 NZLR 282. 295 per (ooke P,. 1his temptation most requentlv
arises in cases inoling so-called secondarv` ictims. Len the most tvpical o tort cases mav inole
losses that extend bevond the immediate ictim o the torteasor. 1hose who suer as a result o a car
accident mav include those injured in rescue attempts. the bvstanders who suer psvchiatric illness as a
result o witnessing the scenes o carnage. the relaties who hae to spend time and monev to care or
their disabled amilv members and the taxpaver whose contributions und the emergencv serices and the
National lealth Serice NlS,. None o these ripple eect` losses can be regarded as ar-etched.
Neertheless. some tvpes o secondarv ictims e.g. rescuers, habituallv gain compensation in the courts
on the grounds that thev are oreseeable plaintis. while others e.g. bvstanders. like Mrs Bourhill. who
suer nerous shock, are regarded as unoreseeable and hae to go without. In act. this has nothing to
do with the probabilitv o loss to the arious parties: rather it relects the law`s iew o the desert o each
and o the consequences o recognising liabilitv. 1his was seen clearlv bv Andrews J when. in his
dissenting judgment in Pat.grat. he derided the manipulation o the oreseeabilitv deice in such cases as
merelv an attempt to it acts to theorv`.

1he better approach. eident in manv recent decisions. is to distinguish such issues o legal policv rom
the actual dutv question. i.e. the question o oreseeabilitv. 1hese issues relate to the question o legal` or
notional` dutv c. (lerk and Lindsell. 1995. para. -0,. whose existence determines whether liabilitv is iv
privcipte capable o arising on acts analogous to those in the present case gien or instance the nature o
the plainti`s loss. the means bv which it was caused and the identitv o the parties,. 1he legal dutv
question has two components- proximitv` and airness. justice and reasonableness`-to which we now
turn our attention.

4.3.5 Proximity
1he requirement that the plainti stand in a relationship o proximitv with the deendant is now o central
importance in the tort o negligence. Although proximitv` was once equated with reasonable
oreseeabilitv` such that a relationship was presumed to be proximate whereer it was reasonablv
oreseeable that negligence bv one partv might cause harm to another: see the discussion o .vv. aboe at
4.3.3,. it has. now assumed an independent existence. and acts in manv cases as the primarv determinant
o whether a dutv o care will arise. Its meaning. howeer. must be considered elusie. t is not to be
interpreted literallv as reerring to closeness` either in time or space: its use is as a legal term o art. but
een understood as such it mav conceal more than it reeals. or there is a tendencv to airm the presence
or absence o proximitv on the acts o an indiidual case without adequate explanation. Accordinglv. we
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mav hae some svmpathv with \eir`s wrv obseration 1991, that Proximitv is now the kev word. though
it doesn`t open manv doors.`

\et the meaning o proximitv need not remain obscure. It is no more than what Lord Bridge described in
Caparo as a conenient label` identiving the eatures o dierent speciic situations which.the law
recognises pragmaticallv as giing rise to a dutv o care.` see 4.3.3,. It is an error to regard it as haing
an immutable core meaning such as to gie it utilitv as a practical test o whether a dutv arises: rather it is
the generic name or att the more speciic-and practicallv useul-tests or the existence o the dutv
which hae been established in dierent tvpes o case. Dierent proximitv principles` will applv in
dierent dutv situations. In what we hae been calling the tvpical` or core` cases o negligence-cases o
personal injurv caused bv the positie act o a priate indiidual-the proximitv rules generallv add
nothing to the requirement o oreseeabilitv albeit that the question o proximitv remains theoreticallv
distinct: see Marc Ricb ava Co .C r. i.bop Roc/ Marive Co ta. )be ^icbota. |1996| A( 211,: it mav be
said that it is the reasonable oreseeabilitv o injurv that establishes the necessarv proximitv. But as we
moe towards the problematic peripheral area o the tort - towards cases inoling dierent orms o loss.
or an omission rather than a positie act. or some other atvpical` eature- proximitv` imposes a more
substantial hurdle. lor example. where the plainti complains o nerous shock` as a result o witnessing
an accident. a number o new proximitv requirements arise: the plainti must show a proximate
relationship i.e. a close tie o loe and aection, with the primarv ictim` o the accident: she must hae
been proximate` to the accident literallv. this time, in time and space. etc. |.| Lquallv. in cases where the
plaintis loss is purelv economic. the authorities hold that there can be no proximitv between the parties
unless the deendant has oluntarilv assumed responsibilitv` or the perormance o a particular task |.|.
lere. it is the oluntarv assumption o the responsibilitv that establishes the necessarv proximitv.

1he concept o proximitv thus reers to the established legal rules-arving rom one dutv situation to
another-that determine whether liabilitv is iv privcipte capable o arising. 1hese rules can onlv be ound in
the caselaw. so the irst injunction to a negligence lawver is: see how ar the authorities hae gone` eatey
yrve c Co r. etter ava Partver. |1964| A( 465. 526 per Lord Delin,. Analvsis o the caselaw need not. o
course. reeal a clear answer. or there mav be disagreement as to the precise scope o a rule in a particular
case did it depend on actors a,. b, andc,. or just a, and b,,. Neertheless. the court must ultimatelv
take a iew on this question. and determine \hether or not the authorities conclusielv establish the
presence or absence o proximitv in the case at hand. I the matter is as vet unresoled e.g. i the case is a
noel one,. the court must decide whether or not to extend the scope o negligence liabilitv to the new
situation. Such an expansion should be allowed onlv when warranted bv considerations o public policv.
i.e. o airness. justice and reasonableness`. and should be eected onlv. to quote a much-cited dictum.
incrementallv arid bv analogv with established categories |sc. o liabilitv|` vtbertava bire Covvcit r. eyvav
1985, 15 (LR 424. 481 per Brennan J,.

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So enthusiasticallv hae the courts embraced the language o Brennan J`s dictum that some commentators
hae used the term incrementalism` to describe the current judicial approach to the dutv question. 1his
accuratelv relects the judiciarv`s currentlv cautious approach to the expansion o negligence liabilitv` but
two caeats are neertheless warranted. lirst. to sav that extensions o the scope o the dutv o care
should be allowed onlv incrementallv is not to indicate the principles which determine rbetber such
extensions should be allowed: it merelv prescribes that those principles should be narrowlv deined. 1he
need to identiv the releant principles remains. As the leading practitioners` work states. incrementalism
should be seen to support rather than supplant the deelopment o principles as the basis or determining
the existence and scope o the dutv o care` (lerk and Lindsell. 1995. para. -16,. Secondlv. there is a
danger that the principles bv which step-bv-step expansions o the dutv are permitted will relect arbitrarv
eatures o the decided cases rather than the essential merits o the plaintis claim against the deendant:
liabilitv mav turn upon historv rather than justice. In short. as an Irish judge has astutelv noted. the
erballv attractie proposition o incremental growth.suers rom a temporal deect-that rights should
be determined bv the accident o birth` !ara r. McMa.ter |1988| IR 33. 34 per Mc(arthv J,. 1his
concern mav howeer be alleiated i judges are prepared to allow a measure o lexibilitv-and sensitiitv
to the underlving merits o the claim-in the deelopment o rules at the proximitv stage.

4.3.6 Iairness, Justice and Reasonableness
A dutv will onlv be recognised where it is air. just and reasonable to hold the deendant liable to the
plainti. Like the question o proximitv. the question o airness relects matters o legal policv. \here
proximitv deals with principles alreadv deeloped in the decided cases. consideration o the airness o the
plainti`s case allows the court to raise matters o policv on an aa boc basis. lairness is raw` policv:
proximitv is policv crvstallised` into legal principle.

1he courts hae not alwavs been prepared openlv to acknowledge the extent to which policv choices
inluence their decisions. Understandablv. manv judges hae been keen to plav down their political role bv
emphasising that their task is merelv to applv principles deeloped oer the course o time in case ater
case. 1hev recognise that thev hae no special training or democratic mandate to determine issues o
social or economic policv and that a trial inoling onlv two parties mav denv a hearing to manv with a
legitimate interest in its outcome. 1he best-known elaboration o this position is ound in Lord Scarman`s
speech in Mcovgbtiv r. O`riav |1983| 1 A( 410. 430:

Bv concentrating on principle the judges can keep the common law alie. lexible and consistent. and
can keep the legal svstem clear o policv problems which neither thev. nor the orensic process which it
is their dutv to operate. are equipped to resole. I principle leads to results which are thought to be
sociallv unacceptable. Parliament can legislate to draw a line or map out a new path.`

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1his approach mav be criticised or trusting too much in Parliament`s willingness to interene where the
common law produces injustice and Lord Scarman`s speech attracted a sharp rebuke rom Lord Ldmund
Daies in the erv same case. 1he latter asserted that public policv issues are justiciable` p. 428, and it
seems that the current louse o Lords would agree. Indeed. in a series o recent decisions. their Lordships
hae embarked upon an open and ull discussion o policv considerations releant to the question whether
it was air. just and reasonable to impose a dutv o care e.g. in !bite r. ove. |1995| 2 A( 20 |.|. `
tMivor.) r. eatora.bire Covvty Covvcit |1995| 2 A( 633 |.|. and )be ^icbota. |1996| A( 211,. Such issues
o airness arise in two tvpes o case. lirst. thev must be inoked where the proximitv issue is unresoled
bv binding precedent as where the situation beore the court is noel,. lere it is up to plainti to
demonstrate the airness o recognising a dutv. A tvpical strategv is to reinorce the plaintis basic claim
to correctie justice bv reerence to the secondarv purposes` o negligence liabilitv see 4.2.4,. e.g. bv
alleging that genial o dutv would deprie a certain class o people o all prospect o (ompensation. there
being no alternatie aenue o protection` see !bite r. ove. |1995|: Stapleton. 199,. or would remoe the
primarv mechanism or deterring a certain tvpe o wrongdoing. Secondlv. where the court accepts that
there is proximitv between the parties. considerations o whether it is air. just and reasonable to allow a
claim mav sere to rebut the prima acie inerence o a dutv o care. lere attention is oten directed at the
so-called loodgates` and oerkill` arguments. which we now turn to consider in more detail.

Iloodgates'
1he so-called loodgates argument has oten been deploved as a justiication or the reusal to recognise
alleged liabilities in negligence. loweer. despite the requent judicial recourse to the argument. there is
considerable conusion as to what it stands or and what weight should be attached to it see 4.3.2,. 1he
argument takes manv dierent orms see Bell. 1983. ch. 3, and it is not alwavs clear in which sense a
court means to use it. Sometimes it ocuses attention on the administration o the courts and points to the
risk that the courts. were thev to allow a particular tvpe o claim. might be swamped with more claims
than thev could handle. 1his orm o the argument seems rather weak. or the more people that suer a
particular wrong. the more reason there is or the courts to redress it. Another ariation o the loodgates
argument commands greater respect. 1his ocuses on the deendant and asks whether it is air to expose
her to liabilitv. A court mav ind that it is not where the extent o the liabilitv would be too great
excessielv burdensome`, or too indeterminate: as the American judge (ardozo J remarked. in a phrase
that has oten been adopted in Lnglish decisions. the courts should be warv o imposing liabilitv in an
indeterminate amount or an indeterminate time to at indeterminate class` |ttravare. Corpv r. )ovcbe
1931, 14 NL 441. 444,.

1he loodgates argument is becoming increasinglv linked with ears about the abilitv o the liabilitv
insurance industrv "to cope with the demands placed on it. Such ears warrant serious attention. or the
abilitv o the tort o negligence to urnish the ictims o accidents with compensation depends on the
eicient operation o the liabilitv insurance market. \ithout insurance. the process o compensation
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through the tort o negligence would eectielv grind to a halt. 1he principal ear is that the continuing
expansion o the tort o negligence threatens to oerload` the liabilitv insurance svstem. Insurers are now
exposed to potential liabilities o such an extent that thev hae become warv o undertaking new business
see Alexander. 1992,. 1hev are also concerned or their continued existence. because their liabilities under
policies thev hae alreadv issued mav considerablv exceed their estimates. which mav not hae taken
account o recent deelopments in the law. lurthermore. the liabilities that insurers ace hae become
increasinglv indeterminate in size. especiallv as a result o the recent judicial willingness to allow claims or
so-called ripple eect` losses suered bv an unpredictable number o Secondarv ictims` o accidents see
Stapleton. 1991,. 1his indeterminacv inhibits insurers in the necessarv task o adjusting their premiums in
line with the risks thev take on. with the result that insurers who are better able to orecast their own
liabilities mav opt to sel-insure: i thev do so in suicient numbers. the insurance market will simplv
unrael` see Priest. 198,.

Although the courts hae repeatedlv held that the existence o liabilitv insurance is in itsel no reason or
upholding a damages claim against the insured see Darie r. ^er Mertov oara Mitt. ta |1959| A( 604:
Morgav r. avvcbberry |193| A( 12, the aboe analvsis suggests that the diicultv o insuring against
excessie and indeterminate liabilities mav make it unair to recognise a dutv o care. Admittedlv.
insurance-based arguments are rarelv deploved explicitlv bv the courts. But such arguments do seem to
hae a certain orce and hae on occasion been inoked. e.g. in Caparo vav.trie. r. Dic/vav |1990| 2 A(
605. 643 where Lord Olier warned against the imposition o a dutv o care on companv auditors or ear
o opening up a limitless ista o uninsurable risk.` In the light o continuing concerns about the health o
the Llovd`s o London insurance market. we mav expect courts increasinglv to make the link between the
loodgates argument and the so-called insurance crisis`.

1he Danger of Overkill
Just as the loodgates arguments warns o the risk o pursuing a policv o covpev.atiov too single-mindedlv.
the oerkill argument points out the deleterious consequences that arise i the aeterrevt eect o negligence
abilitv is too great. 1he argument was considered in some depth bv Lord Keith in Rortivg r. )a/aro
Propertie. ta |1988| A( 43. 502. lis Lordship explained:

It is to be hoped that. as a general rule. imposition o liabilitv in negligence will lead to a higher
standard o care in the perormance o the releant tvpe o act: but sometimes not onlv mav this not be
so. but the imposition o liabilitv mav een lead to harmul consequences. In other words. the cure
mav be worse than the disease`.

In the oerkill scenario`. those threatened with liabilitv respond bv taking on necessarv saetv precautions
or bv giing up a sociallv beneicial actiitv altogetherImpressed bv the risk o such detrimentallv
deensie conduct. the louse o Lords has ruled that it is not air. just and reasonable to impose a dutv on
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local authorities in discharging their unctions ri.ari. the preention o child abuse and the allocation o
special schooling or those with learning diiculties ` r. eatora.bire Covvty Covvcit |1995| 2 A( 633, or on
the police in their inestigation o crime itt r. Cbiet Cov.tabte ot !e.t Yor/.bire |1989| A( 53. And. in a
dierent context. their Lordships hae recentlv ruled that considerations o airness also precluded anv
claim in negligence bv cargo owners ater the loss at sea o a essel that had recentlv been sureved and
certiied as it to sail bv an international maritime classiication societv Ricb tMarc) c Co .C r i.bop Roc/
Marive Co ta. etbervarive Co ta ava ^ippov Kaiii Kyo/i. )be ^icbota. |1996| A( 211,. According to
Lord Stevn. who spoke or the majoritv o the louse o Lords. the classiication societv`s perormance o
its public role. as a non-proit-making entitv. created and operating or the sole purpose o promoting the
collectie welare. namelv the saetv o lies and ships at sea`. might be jeopardised bv the threat o liabilitv.
(lassiication societies might be induced to adopt a more deensie position`. e.g. bv declining to take on
high-risk business. where their serices were most necessarv. or bv dierting their resources awav rom
their primarv task o saing lies and ships. 1his risk among others, outweighed the counterailing
argument. adanced bv Lord Llovd dissenting,. that the recognition o a dutv would induce classiication
societies to take due care in sureving essels. promoting saetv at sea and therebv addressing concerns
within the shipping communitv about declining standards.

\et. although there is sometimes a sound basis or the oerkill argument this is one area in which
economic analvsis has produced interesting insights into the law: see Bishop. 1980 and 1982: 5.5,. all too
oten it seems to relv less on hard acts. than on speculation and second hand knowledge o the alleged
liabilitv crisis` in the USA on which. see luber. 1988,. 1he ollowing statement. taken rom the judgment
o Purchas LJ in Creater ^ottivgbav Cooperatire ociety ta r. Cevevtatiov Pitivg ava ovvaatiov. ta |1989| OB
1. 95 mav be construed as exhibiting this shortcoming:

1hat this is a ield in which the law has properlv applied policv restrictions |on the scope o liabilitv| is
justiied bv a glance at the position reached on the other side o the Atlantic where damages awarded in
respect o medical and surgical negligence is. it is belieed. Lecting the proper execution bv surgeons
o their proessional tasks to. the detriment o the patients.`

In the absence o real eidence o such questions. the courts` approach is ineitablv speculatie and
intuitie. and the risk o inconsistencv is high. Although the louse o Lords in lill was swaved bv the
danger that the risk o liabilitv might induce police oicers to adopt a detrimentallv deensie rame o
mind in inestigating crime. it had preiouslv rejected such arguments in respect o oicers at a training
camp or voung oenders ove Ottice r. Dor.et Yacbt Co ta |190| A( 1004,. Memorablv dismissing anv
analogv with US authoritv where the oerkill argument had succeeded. Lord Reid stated p. 1033,:

It mav be that the public serants o the State o New \ork are so apprehensie. easilv dissuaded rom
doing their dutv. and intent o presering public unds rom costlv claims. that thev could be
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inluenced in this wav. Jut mv experience leads me to beliee that ler Majestv`s serants are made o
sterner stu.`

1here must. accordinglv. be doubts about the strength o the oerkill argument in some o the situations
in which it is emploved. (ourts should be reluctant to dismiss otherwise desering claims or damages on
the basis o grounds as limsv as a mere glance at.the other side o the Atlantic` and should bear in mind
Lord Browne-\ilkinson`s prescription that the public policv consideration which has irst claim on the
lovaltv o the law is that wrongs should be remedied and that rery potevt counter-considerations are
required to oerride that policv` ` tMivor.) r. eatora.bire Covvty Covvcit |1995| 2 A( 633. 49: emphasis
added,.


4.4 Interference with the Person and Personal Property
4.4.J Overview
laing considered the tort o negligence. we begin now our discussion o the remaining torts that eature
on the tvpical tort svllabus. As we stated aboe. these are to be grouped according to the interests thev
mav be said primarilv to protect |.|. lere we deal with torts that protect against intererence with the
person and personal propertv. Subsequent parts o the |chapter| deal with interest in land |.| and
interests in reputation and priacv |.|. In each o these areas. we consider the impact made bv the tort o
negligence and the distinctie contribution made bv other tortious causes o action.

In the context o intererence with the person and with personal propertv. the tort o negligence has had a
signiicant impact. As a practical matter. it has tended to marginalise the older common law torts. As a
matter o strict law. it has led the courts to regard the distinctie eatures o other torts as anomalous. and
consequentlv to eliminate those eatures. loweer. a number o older common law torts continue to plav
a aluable role in the law todav. 1he most important o these are listed below:

)re.pa.. to tbe per.ov is the label aixed to a group o torts. actionable without proo o damage. which deal
with direct` iolations o the person or o personal libertv. 1he group consists o a..avtt. battery and tat.e
ivpri.ovvevt. |.|

!rovgtvt ivterterevce with goods not considered elsewhere in this book, is also a name gien to a group o
torts. this time dealing with injurv to personal propertv rather than to the person. Among them are tre.pa..
to goods. which consists in anv unjustiied direct` intererence with goods e.g. snatching vour wallet.
kicking vour dog or ramming vour car, and covrer.iov. which consists in unjustiied and wilul taking awav.
detention. disposal or destruction o goods in a manner inconsistent with the rights o another. I nothing
done to the goods is inconsistent with another`s rights. the onlv action is in trespass. 1hus mv stealing
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vour ball is both a trespass and conersion. but mv grabbing vour ball to throw it at someone else is onlv a
trespass. or I am not questioning vour rights oer it.

iabitity tor avivat.. an example o strict liabilitv i.e. liabilitv without ault,. deeloped in the earlv davs o
the common law. It was expressed in two common law rules. the irst concerning cattle trespass. the
second dealing with the inliction o harm bv dangerous animals whose icious propensitv was known-
actuallv or imputedlv-bv their keeper the .cievter action,. 1he old common law actions hae been
abolished. and the principles o strict liabilitv in relation to the keeping o animals codiied. bv the Animals
Act 191.

1he emergence o the tort o negligence. and o the ideologv that underpins it. has inluenced the legal
deelopment o the other torts and led to their marginalisation in practice. 1hese processes are eident
when we consider the relationship between negligence and trespass to the person. 1he inlux o notions o
negligence into the legal deinition o trespass is traced below |.|. As trespass became increasinglv
assimilated to negligence. it was tempting to regard as anomalous those exceptional cases in which liabilitv
might arise in the ormer but not in the latter e.g. where the plainti suers no damage,. 1he result has
been an attempt to eradicate those anomalies bv treating unintentional intererence with the person as
giing rise to liabilitv in negligence alone etavg r. Cooper |1965| 1 OB 232 |.|, As a matter o practice.
howeer. negligence had long since supplanted trespass as the principal action or personal injuries.
Although negligence could not be regarded as a comprehensie and sel-contained tort until Dovogbve r.
terev.ov. liabilitv or negligence in arious contexts was established centuries beore. In such contexts e.g.
running-down cases on the highwav,. it was preerable or plaintis to rame their actions in negligence. as
the scope o the action o trespass was limited and uncertain. (ruciallv. there were doubts as to whether
the requirement o trespass that the intererence be caused bv direct` means was satisied where a collision
on the highwav was caused bv negligence rather than bv wilul conduct see Baker. 1990. pp. 466-,. Bv
wav o contrast. actions or negligence came to be allowed in respect o both direct` and indirect` damage
see !ittiav. r. ottava 1833, 10 Bing 112, and so the risk o losing one`s case on the pleadings was
reduced.

\eir 1992, has noted wrvlv that Negligence is alwavs trving to edge out the other torts. |but|.a ew
torts hae managed to surie the competition` p. 313,. 1he torts considered in the subsequent chapters
o this part o the book mav be numbered among them. 1hev are not mere historical relics. 1he arious
orms o trespass to the person |.| retain a practical importance in the protection o ciil liberties and the
indication o indiidual rights. lurthermore. arious statutorv torts proide a more satisactorv remedv
than the tort o negligence. One reason or this is that the aailabilitv o an action in negligence mav be
limited bv restrictions on the scope o the dutv o care as was the case in relation to occupiers` liabilitv
|.|. Another reason is that a number o statutes impose liabilitv that is strict`. in the sense that negligence
on the part o the deendant need not be established |.|.
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4.4.2 Iault-based and Strict Liability
\hen considering the role o ault in tort liabilitv throughout historv. three phases can be distinguished.

1. Larlv tort actions seem little concerned with ault. 1his was probablv because the age was unmechanical
and it was diicult or people at the time to conceie o harm being caused other than intentionallv. I the
act that the deendant took all reasonable care was recognised as an excuse. this does not appear in the
law reports o the time see Baker. 1990. pp. 456-9,.

2. \ith increasing industrialisation all this changed. Accidents at the workplace and on the roads. railwavs
and shipping routes became righteninglv common. Inant industrv. its existence still precarious. eared
being crippled bv liabilities imposed bv the law o tort. 1o limit these liabilities. it adopted the standard
No liabilitv without ault`. \here industrv was not threatened. bv contrast. liabilitv might well be
recognised as strict. as was the case with the .cievter action.

3. 1he adent irst o workers` compensation schemes 189, and then o the social welare state 1946,
relected a change in societv`s attitudes to its responsibilities or the unortunate. Industrv was now
established and producing enough wealth to saeguard its uture een i it were exposed to an increased
leel o tortious liabilities. Manv people came to eel that industrv had a responsibilitv towards those who
were injured bv its actiities. irrespectie o whether anvone was at ault. In a startling piece o judicial
innoation. the courts in Rytava. r. tetcber 1866, recognised strict liabilitv in respect o damage caused bv
the escape o water rom a reseroir used to power the deendant`s mill |.|. 1he courts also began to
recognise liabilitv or the breach o strict statutorv duties imposed upon emplovers and others. een when
no statutorv remedv was prescribed |.|. 1he spirit o reorm has eneloped the legislature as well.
notablv in the ield o product liabilitv |.|.

1he rationale o strict liabilitv is that it is unair or the communitv at large to beneit at the expense o the
indiidual. 1he communitv beneits rom riskv actiities carried out in industrial and other spheres.
actiities which hae their ineitable cost in the injuries suered bv emplovees. consumers and others. 1he
wealth generated bv industrv could well be emploved to proide compensation or the ictims o the
machine age. 1he rationale o strict liabilitv can be contrasted with that o negligence liabilitv. \hereas the
latter ocuses upon the deendant`s wrong and treats that as the reason or requiring him to compensate
the ictim. strict liabilitv accepts that the deendant`s conduct might be blameless-een or the public
beneit-but neertheless requires him to compensate the ictim as the price o pursuing his actiities.
1he compensation paid mav be iewed as a tax on. or licence ee or. those actiities.

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4.4.3 Compensation for Personal Injuries
As we hae just seen. a more general response to increasing welarism than the recognition o strict
liabilitv in certain areas was the introduction o workers` compensation schemes and subsequentlv o
social securitv beneits. Once the principle o compensation out o public unds and irrespectie o ault
became established. a collision o ideals between the social welare state and the common law o tort was
ineitable. 1he continuing releance o the law o tort as a means o proiding compensation or personal
injuries was now open to doubt.

1he centrepiece o anv discussion o the role o tort law in compensation or personal injurv is the report
o a Roval (ommission on (iil Liabilitv and (ompensation or Personal Injurv. chaired bv Lord Pearson.
which was presented to Parliament in 198. 1he (ommission had been set up in 192 amid public
concern about the 1halidomide cases. 1hese cases had uelled debate about the place o tort law in
modern societv and had stimulated a number o calls or tort law`s abolition. Proiding ammunition or
those making such calls were the reports o goernment-appointed teams o inquirv in New Zealand
196, and Australia 194,. both chaired bv Mr Justice \oodhouse. 1he reports concluded that tort
claims in respect o personal injurv should be abolished and replaced bv comprehensie schemes
proiding compensation irrespectie o whether anvone else could be proed to be responsible or the
injurv. 1hese actors generated the expectation that the Pearson (ommission would recommend the
abolition o the tort svstem in respect o accidental injurv. loweer. this was not to be.

1he Pearson (ommission took the iew that its terms o reerence precluded it rom considering whether
tort should be abolished. It had been directed to consider when and how compensation should be paid in
respect o death or personal injurv caused at work. on the roads. bv deectie products or serices. on
other people`s premises or otherwise through the acts or omission o another. Because a large proportion
o injuries. notablv manv o those suered in the home. ell outside these terms. the (ommission elt
unable to recommend a comprehensie scheme dealing with all personal injurv. laing reached this
controersial conclusion. it was ineitable that the (ommission would base its detailed recommendations
on the assumption that tort should continue to hae a major role in anv accident compensation strategv.
As the (ommission pointed out. unless a comprehensie compensation scheme were in operation. the
abolition o tort or personal injurv would deprie manv injured people o a potential source o
compensation. without putting anvthing in its place`. Accordinglv. the Pearson (ommission recommended
the retention o a mixed svstem` o accident compensation.

4.4.4 1he Mixed System of Accident Compensation
1he mixed svstem that the Pearson (ommission wished to perpetuate was and is one in which social
securitv is the primarv method o proiding compensation and the role o tort law is supplementarv. As a
svstem o compensation. tort law suers rom a number o limitations in comparison with social securitv.
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being o limited scope. costlv and prone to delav. In terms o the scope o its coerage. it is social securitv
which ensures that the needs o the ast majoritv o those who hae been injured are met. 1he Pearson
(ommission ound that. whereas oer 1.5 million o those suering personal injurv receie social securitv
pavments. onlv 215 000 6.5 per cent, o them obtain tort damages. 1hose whose condition stems rom
illness rather than accident are particularlv unlikelv to recoer in tort. As Stapleton 1986a, points out.
een those who suer rom man-made disease`. and who are thereore potential tort claimants in that
thev at least hae a deendant to pursue. mav ind their case runs up against insurmountable obstacles. In
particular. it mav proe impossible to establish more than the act that exposure to a certain substance
mav cause injuries o the sort suered bv the claimant. which is not suicient to satisv the causal
requirement that the plainti was in act injured in a certain manner |.|.

In terms o cost. tort again suers in comparison: lawvers charge breathtaking ees. insurance companies
deote considerable resources to handling claims and aluable court time is taken up with determining
liabilitv and assessing damages. 1aking all such actors into account. the Pearson (ommission estimated
that the operating costs o the tort svstem amount to about 85 per cent o the alue o tort compensation
pavments: the equialent igure or social securitv was about 10 per cent. 1hese costs suggest that tort law
is an ineicient means o channelling compensation to accident ictims. 1he same storv emerges rom a
consideration o the length o time it takes or accident ictims to receie compensation. Although.
according to the Pearson (ommission. almost hal o all tort claims are settled within a vear. those alleging
substantial losses oten take considerablv longer requentlv more than ie vears,. A long delav beore
receiing compensation mav place considerable demands on the resources o the ictim. especiallv as he
mav be in no condition to work. and mav detrimentallv aect his qualitv o lie. 1his is exacerbated in the
case o those whose condition mav actuallv require them to spend monev: someone who is crippled ater
an accident. or instance. mav hae to make alterations to his house in order to get about it reelv. Bv wav
o contrast with the law o tort. ictims o accidents or illness begin to receie social securitv beneits as
soon as thev need them.

Adocates o the tort svstem would argue. howeer. that the expense o running the svstem is justiied.
Adherents to notions o correctie justice. or example. maintain that those injured bv another`s ault hae
a claim to greater compensation than the bare minimum support proided bv the social securitv svstem.
een i their injuries are similar to those o people who hae to make to without such support. 1his iew
seems to underpin much o the Pearson (ommission`s thinking: contrast (ane. 1993. ch. ., A dierent
school o thought holds that the expense o the tort svstem is warranted on the grounds that the threat o
liabilitv seres to deter wrongdoing and leads to the most eicient utilisation o societv`s resources. lor a
comprehensie analvsis o the competing theories. see (ane. 1993. ch. 18.

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4.4.5 1he Pearson Commission Proposals
As the Pearson (ommission thought that recommending a comprehensie compensation svstem was
bevond its remit and was committed to the continuation o a mixed svstem. its proposals or reorm were
rather limited. 1hev amount to an eort to tinker with the tort svstem rather than a major oerhaul. 1he
(ommission`s aims were ourold: a, to make sure that tort compensation did not oerlap with social
securitv pavments: b, to gie prioritv within the tort svstem to the most seriouslv injured and ensure that
their interests were adequatelv looked ater: c, to introduce pockets o strict liabilitv: and d, to
consolidate or extend no-ault` schemes o limited scope in certain areas.

(a) 1he Prevention of Overlap'
In a mixed svstem o compensation. there is a danger that beneits rom one source will simplv duplicate
those rom another. 1he result is oercompensation. 1o guard against the possibilitv o oerlap between
the two partners in the mixed svstem o compensation approed bv the Pearson (ommission. the
(ommission made a number o recommendations: the alue o social securitv pavments should be
deducted in ull rom damages awards implemented in part bv the Social Securitv Act 1989 |.|,: priate
medical expenses should onlv be recoerable where the plainti could show that or medical reasons it
was reasonable to incur them not implemented,: and the alue o being maintained bv the NlS the
hotel element`, should be taken into account in the assessment o damages implemented bv
Administration o Justice Act 1982. s. 5 |.|,.

(b) Prioritising the Most Serious Cases
1he Pearson (ommission aimed to gie prioritv within the tort svstem to those who would need it most
bv making radical changes to the law relating to the assessment o damages |.|. lirst. manv minor cases
were to be remoed rom the svstem altogether bv imposing a threshold in relation to non-inancial loss.
1he (ommission recommended that no damages should be recoerable or non-inancial loss suered
during the irst three months ater the date o injurv. Its rationale or this restriction was that it would
leae the tort svstem ree to concentrate on serious and continuing losses. Secondlv. the (ommission
recommended that no damages or non-inancial loss should be recoerable or permanent
unconsciousness: the award o such damages could perorm no useul purpose because the plainti would
not be able to derie enjovment rom their use. 1hirdlv. the (ommission proposed that. in cases o death
or serious and lasting injurv. compensation or post-trial inancial losses should be paid on a periodic basis
rather than in a single lump sum. 1he extra expense which would result rom the operation o a svstem o
periodic pavments would be justiied bv the act that the plainti would be more accuratelv compensated
or what he had lost. namelv his income. and better protected in the eent o a change in his
circumstances. None o these proposals has as vet been implemented.

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(c) Strict Liability
1he Pearson (ommission considered that. in general. negligence should remain as the basis o liabilitv in
tort. loweer. the (ommission recommended the introduction o strict liabilitv regimes in respect o rail
transport. deectie products. accine damage. and things and actiities inoling exceptional risks see
(ane. 1993. pp. 88-93,. 1he rationale behind this piecemeal approach is unclear: certainlv. it was neer
ullv explained bv the (ommission. Its reasons or emphasising the role o ault` as a precondition o tort
liabilitv seem largelv sentimental and amount to little more than a repeated assertion that it would be
unair to hold those who cause accidents innocentlv liable to their ictims. 1his ignores both the
justiications or the imposition o strict liabilitv |.| and the act that much tort liabilitv is alreadv strict
e.g. breach o statutorv dutv |.|: icarious liabilitv |.|,. Len the tort o negligence maniests some
characteristics o strict liabilitv. or the standard o care it demands is that o the reasonable person and
this mav result in the imposition o liabilitv een though there was nothing a particular deendant could
hae done to preent the injurv in question |.|.

1he onlv area in which the Pearson (ommission`s proposals on strict liabilitv hae properlv been
implemented is that o product liabilitv. on which the UK was required to act as a matter o L( law |.|.
In relation to accine damage. the goernment. on which the strict liabilitv was to all. pre-empted the
(ommission`s proposals bv announcing that. subject to certain qualiications. seerelv accine-damaged
children would be gien lump sum pavments o ]10000 now increased to ]30000,. (ane 1993,
comments that the preerential treatment o accine-damaged children as compared with other disabled
children seems to owe more to political action than anv satisactorv moral distinction p. 93,:

It appears that in this case. as in some others. preerential treatment or a small group was the result o
a well conducted political campaign which plaved on public svmpathv or particularlv heart-rending
cases.`

(d) No Iault' Compensation Schemes
1he Pearson (ommission adocated the consolidation or extension o no ault` compensation schemes in
three areas. No ault schemes proide accident ictims with compensation regardless o whether their
injuries were the result o anvone else`s ault. In this. it resembles strict liabilitv. It diers rom strict
liabilitv. howeer. in that the monev paid as compensation comes rom a central und rather than directlv
rom the person who caused the accident. 1he Pearson (ommission approed the basic structure o the
existing industrial injuries scheme. although it recommended some improements the beneits are now
pavable in the orm o Statutorv Sick Pav and other related beneits,. It suggested that a new scheme be
introduced or those injured on the roads. 1his has not been done. although the issue was raised again or
consideration in the Lord (hancellor`s Department ollowing a recommendation in the (iil Justice
Reiew 198,. linallv. the Pearson (ommission submitted that a new social securitv beneit should be
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introduced or seerelv handicapped children not implemented,. In each o these areas. injured people
were to retain their rights to tort compensation.

4.4.6 Comprehensive Compensation Schemes
1he piecemeal approach o the Pearson (ommission to the institution o no ault compensation schemes
contrasts with eorts to implement comprehensie schemes elsewhere. As we hae noted. the
introduction o such schemes was irst seriouslv considered in the common law world in New Zealand
and Australia. 1he New Zealand accident compensation scheme was introduced in 194 bv legislation that
at the same time abolished anv claim to compensatorv damages in tort or accidental personal injurv:
proposals to introduce a similar scheme in Australia were scuppered shortlv aterwards as a result o a
change in goernment.

1he New Zealand scheme set out to achiee compensation and deterrence objecties |.| more
eectielv than under a mixed svstem. Its undamental precept was that o comprehensie entitlement to
compensation. (ompensation was to be paid to all those suering personal injurv bv accident`. 1his
phrase included injuries suered because o medical misadenture as well as occupational disease. though
not ill health generallv. 1he compensation proided bv the scheme was to be paid on a periodic basis and
was to be earnings-related. loweer. a limit was set to awards in respect o lost income at 80 per cent o
pre-accident earnings subject to an oerall maximum igure: the scheme`s ocus upon pre-accident
earnings meant that no allowance could be made or prospects o promotion or other contingencies.
Proision was made or the award o lump sums up to speciied maximums in respect o non-inancial
losses. 1he scheme was to be paid or bv leies on emplovers. the sel-emploved and ehicle licence
holders. as well as out o general taxation. 1his allowed a deterrence element to be built into the scheme.
Lmplovers with good saetv records could hae a proportion o their contributions to the scheme
reunded. while those with bad saetv records might incur penaltv rates though some remain sceptical
about the eectieness o these mechanisms,.

1he scheme became the env o manv in other countries. Its combination o the principle o
comprehensie entitlement with administratie costs that proed to be erv low around 6 per cent o the
sums paid out, led to it being treated as a model o enlightened reorm. In so ar as the scheme attracted
criticism. it was or ailing to go ar enough. and manv pressed or its extension to all cases o disease as
well as accidental injurv. Such calls ignored the inancial strains that the burden o ensuring
comprehensie compensation was alreadv imposing on the scheme. 1hese strains were such that major
changes in the scheme became necessarv. 1he Accident Rehabilitation and (ompensation Insurance Act
1992. described in its preamble as |a|n Act to establish an insurance-based scheme to rehabilitate and
compensate in an equitable and inanciallv aordable manner those persons who suer personal injurv`.
made seeral signiicant reorms in an eort to cut costs. lirst. it abolished the right to recoer a lump
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sum in respect o non-pecuniarv losses. replacing it with a weeklv independence allowance or those let
with signiicant disabilities. Secondlv. it gae a restricted deinition to the concept o compensatable
personal injurv in order to reduce uncertaintv about the scope o entitlement to compensation and to
reerse the eect o a number o judicial decisions which had had the eect o extending the right to
compensation in arious respects e.g. in relation to medical misadenture. nerous shock and stress,.
Lastlv. the new scheme will be inanced bv premiums leied upon the ordinarv taxpaver as well as upon
those who subsidised the original scheme. while proision has been made or the experience rating` o
premiums. in an eort to promote the deterrence objecties o the scheme more eectielv than under
the old svstem o penalties and bonuses.

1he reorms made to the New Zealand scheme should place it on a sounder inancial ooting and therebv
enable it to demonstrate the economic easibilitv o operating such a scheme. It mav. howeer. be queried
whether the reorms sere to exclude so manv cases rom the scope o the scheme that thev promote a
return albeit limited, to the tort litigation that the scheme was designed to abolish. Onlv time will tell
whether the New Zealand experience can proide a model or the introduction o a comprehensie
compensation scheme in this countrv.


4.5 Interference with Land: Introduction
4.5.J Property, 1ort and Crime
A number o torts can be seen as an adjunct to the law o real propertv. Speaking in broad terms. we can
sav that legal rules relating to interests in land mav be grouped under three headings. lirst. there are rules
that determine who has preciselv what interest in land. Secondlv. there are rules that sere to protect those
arious interests in land against intererence. 1hirdlv. there are rules that goern the passing on o those
interests to others. or instance bv sale or bv inheritance. Rules under the irst and third headings are
primarilv the concern o books on land law: those under the second. howeer. are the presere o the law
o tort. 1he torts o trespass and nuisance. in particular. are the means bv which those with interests in
land preent their enjovment o those interests being eroded unlawullv. In perorming this unction. the
torts o trespass and nuisance also add lesh to the skeleton urnished bv land law`s list o interests in land:
where land law speciies who has what interest in land. tort law speciies what in practice those interests
entitle one to do.

1respass is concerned with direct` encroachments on land: nuisance with intererence that is indirect`. I I
step on vour land without vour permission or deliberatelv place something on it e.g. mv rubbish, that is a
trespass. whereas i I pollute vour land with noise. smells and umes. or let things inadertentlv escape
rom mv land onto vours as where mv wall alls down through disrepair,. that is a nuisance. Nuisance` is
used here in a technical sense to denote the unreasonable intererence with the use and enjovment o
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another`s land. Sometimes this tort is called priate nuisance` in order to distinguish it rom public
nuisance` which is a crime o ill-deined scope: the courts hae the power to label anv conduct that causes
annovance to a substantial portion o the communitv a public nuisance` see Spencer. 1989,. Public
nuisances need not hae anv impact on the use and enjovment o land. Lxamples hae included making a
telephone bomb hoax. selling ood that was unit or human consumption and holding an ill-organised
pop estial. A public nuisance. though primarilv a criminal oence. will gie rise to a concurrent tortious
liabilitv where an indiidual suers special damage` as a result o the conduct in question. In iew o the
nebulous nature o public nuisance. our discussion o it is conined to its most common maniestation:
obstruction o the highwav |.|.

A third tvpe o nuisance is statutorv nuisance`. Statutorv nuisances. like public nuisances. are criminal
oences. Under the Lnironmental Protection Act 1990. Part III. a number o actiities that are harmul
to the enironment are listed as statutorv nuisances. and the courts are empowered to order the cessation
o those actiities. 1he creation o these oences is a crucial prong o enironmental policv. Unlike public
nuisance. there is no rule that a person who suers special damage as the result o a statutorv nuisance
mav bring an action or damages in tort. 1he acts that gie rise to a criminal liabilitv or statutorv
nuisance mav. howeer. gie rise to an independent tortious liabilitv or public or priate nuisance i thev
satisv the requirements o those causes o action.

4.5.2 1respass, Nuisance and Negligence
As elsewhere in the law. the expansion o the tort o negligence has had an impact on the more
established torts. particularlv the tort o nuisance. Manv claims which inole the competing rights and
duties o neighbouring landowners. and which historicallv would thereore hae been iewed as the
concern o the law o nuisance. are todav brought under negligence. 1his tendencv was most noticeable in
relation to liabilitv or the acts o third parties and natural hazards on one`s land |.|. In both these areas.
liabilitv in nuisance was slow to deelop and negligence. which was thought or a time to treat the
oreseeabilitv o harm to the plainti as the sole criterion o liabilitv |.|. seemed to oer plaintis better
prospects o success. It is now clear that oreseeabilitv is not enough to establish liabilitv in negligence in
such cases. 1here is no adantage to be gained rom raming one`s action in negligence rather than
nuisance see Cotavav r. argrare |196|, 1 A( 645,. Neertheless. the liabilitv o landowners or the acts
o third parties and natural hazards on their land is now an established part o the tort o negligence |.|
and has substantiated what Markesinis 1989, iews as negligence`s unstoppable tendencv to subsume
under its heading the role o older nominate torts`. 1he eect o the rise o negligence is not onlv that
negligence is in practice tending to take oer the role o nuisance: it is also the case that doctrines o
nuisance law hae been inused with the ault principle` which negligence embodies. Areas o nuisance
law in which liabilities had been imposed irrespectie o ault e.g. under the rule in Rytava. r. tetcber
|.|,-or. conerselv. in which liabilitv did not arise howeer reprehensible the conduct in question-
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came to be regarded as anomalous. (onsequentlv. the courts took eerv opportunitv to enlarge the
categorv o cases in which liabilitv turned upon the reasonableness o what was done and to stress that
liabilitv should not be imposed without proo o ault |.|. Some commentators hae responded to these
deelopments bv arguing that. in realitv. nuisance is a branch o the law o negligence` \illiams and
lepple. 1984. p. 124 |.|,. Neertheless. the primarv remedv or a nuisance is an injunction and the tort
mav thereore be regarded as more orward-looking. and more concerned with regulating a continuing
relationship. than can negligence whose concern is onlv to compensate a loss that has alreadv occurred.

1he tort o trespass to land also pursues a range o objecties quite distinct rom the goal o
compensation or losses incurred indeed. it shares with other tvpes o action in trespass the characteristic
that it is actionable without proo o loss,. 1odav. its chie practical signiicance is as a means o
maintaining the priacv o one`s home against unwanted intrusion and o settling boundarv disputes with
one`s neighbours. purposes or which the tort o negligence is not suitable.


4.6 Defamation
4.6.J Interference with Personality Generally
low much protection should Lnglish law gie to interests in personalitv` Should one person. or
example. hae a remedv when another makes untrue. or een true. statements about him which aect his
sense o dignitv or honour Should one person be able to bring an action where another appropriates his
name or picture or commercial use without his permission Should a person be able to preent another
planting listening deices in his house or taking photographs o him bv surreptitious means 1hese are
exed questions that hae troubled lawvers. both practising and academic. or at least a hundred vears. In
this chapter we look principallv at the law o deamation and the wav in which it protects a particular
interest in personalitv. namelv a person`s reputation. As we shall see. the law o deamation is primarilv
concerned with proiding a remedv to a person who has been the ictim o an untrue statement that
lowers his reputation in the estimation o others. 1he law o deamation. howeer. leaes other interests in
personalitv unprotected. It proides no protection in respect o priate inormation. or example. where
true but unlattering or een extremelv damaging statements are made bv one person about another. Nor
does it protect the so-called seclusion interest` against iolation. It also proides no protection o the
interest in commercial exploitation o one`s personalitv e.g. the use o another`s name or image or
inancial gain,.

Although the protection gien to interests in personalitv bv the law o deamation is limited. there are
other legal principles which mav be used in order to protect interests in personalitv. lirst. the interest in
reputation is protected not onlv bv the tort o deamation but also bv the torts o negligence and malicious
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alsehood. In privg r. Cvaraiav ...vravce ptc |1995| 2 A( 296 it was held that. in writing a reerence about
an emplovee. an emplover owed him a dutv o care. As Lord Go said.

the emplover is possessed o special knowledge. deried rom his experience o the emplover`s
character. skill and diligence in the perormance o his duties while working or the emplover.
|lurthermore. when such a reerence is proided bv an emplover. it is plain that the emplovee relies
upon him to exercise due care and skill in the preparation o the reerence beore making it aailable to
the third partv. In these circumstances. it seems to me that all the elements requisite or the application
o the eatey yrve principle are present` p. 146-,.

Recognition that an action lies in negligence in such a case is o considerable signiicance or those
inaccuratelv characterised in a reerence. 1hose who commence an action or negligence are. unlike those
who sue in respect o a deamatorv statement. entitled to legal aid. lurther. the law o deamation
recognises that statements made on certain occasions mav be priileged` |.|. Statements made in
reerences hae alwavs been assumed to be protected bv qualiied priilege. I. thereore. the action was
brought in deamation the plainti would not succeed unless he could establish that the deendant was
actuated bv malice. Priilege is not a deence to negligence.

Although the tort o malicious alsehood primarilv protects a plainti`s interest in his propertv or trade. it
mav in limited circumstances be utilised bv a plainti to protect his reputation. In oyce r. evgvpta |1993| 1
\LR 33. the deendant newspaper published an article alleging that the plainti ladv`s maid had stolen
letters rom her emplover. the Princess Roval. Rather than commencing her action in deamation. which
as the (ourt o Appeal accepted was the obious action. the plainti sued or malicious alsehood or
which legal aid is aailable,. (learlv. the plaintis reputation had been lowered but she had also been
injured in her trade. that o ladv`s maid. \here the same acts constitute both torts there is no reason whv
the plainti cannot choose to sue or malicious alsehood.

Second. the ivtere.t iv ivtorvatiovat priracy is protected bv the action or breach o conidence which. in
addition to protecting trade secrets. can be used to preent the disclosure o true but priate acts about
onesel. lor example. in .rgytt r. .rgytt |196| (h 302 a man was preented rom disclosing inormation
gien to him bv his ex-wie during their marriage which concerned her priate aairs. loweer. the
equitable remedies aailable in respect o an action or breach o conidence are aailable onlv where the
inormation a, has the necessarv qualitv o conidence about it: b, is coneved in circumstances
importing an obligation o conidence: and c, is used in an unauthorised wav to the disadantage o the
person who communicated it. In addition to the action or breach o conidence. certain statutes mav also
preent the disclosure o true acts. lor example. section 49 o the (hildren and \oung Persons Act 1933
prohibits the reelation in anv report o juenile proceedings o the name. address. school or anv other
particulars identiving anv juenile inoled unless the court grants leae.
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1hird some. though erv limited. protection has been gien to the interest iv covverciat eptoitatiov ot
per.ovatity bv the tort o deamation. In )ottey r. ry |1931| A( 333 the court used the law o deamation to
proide what looks. in essence. like a remedv or the unauthorised appropriation o another`s personalitv.
A caricature o a well-known amateur goler with a bar o lrv`s chocolate in his back pocket was held to
be deamatorv o the goler. In realitv. the plainti appears to hae been gien an action. under the guise
o deamation. restraining the unauthorised use o his picture or commercial purposes. Apart rom this
case. the courts hae not shown themseles willing to allow an action or the unauthorised use o
another`s picture or name though. as lleming 1992. p. 605, points out. the decision has potentiallv ar
reaching implications and could be stretched to sere as a basis or restraining the unauthorised use o
anvone`s name or picture or commercial use under the guise o protecting reputation.`

linallv. some protection is gien to one`s ivtere.t iv .ectv.iov bv. ivter atia. the torts o trespass. nuisance and
!it/iv.ov r. Dorvtov |189| 1hus. an owner o land mav be able to sue in trespass a photographer who
sneaks onto his land to take photographs and an injunction mav be issued against a campaign o
harassment that is likelv to cause another psvchiatric illness Kbora.avaiiav r. v.b |1993| |.|,. Additionallv.
a number o statutes proide protection against intererence with one`s seclusion interest. lor example. s.
14 o the Post Oice Act 1969 makes it an oence to open the letters o another without authorisation
and s. 43l,b, o the 1elecommunications Act 1984 makes it a criminal oence to make persistent
telephone calls to annov or cause needless anxietv. O considerable signiicance in this area is the recent
enactment o the Protection rom larassment Act 199. In addition to creating two criminal oences
one to catch the most serious cases where the ictim ears or his saetv. s. 4,: the other to deal with less
serious cases. s. 1,. the Act creates a statutorv tort o harassment s. 3,. 1his proision is widelv drated
and allows a ictim to obtain an injunction not onlv to stop behaiour that is alreadv causing distress but
also behaiour that mav cause distress in the uture. Breach o anv injunction made is made a criminal
oence. carrving the power o arrest s. 33,,.

It can be seen. thereore. that Lnglish law does protect interests in personalitv other than the right not to
hae untruths uttered to another about onesel. loweer. the protection oered is at best haphazard and
gaping holes still exist. Are there reallv ree speech implications that preent there being an action or
appropriation o personalitv or commercial use So ar as the interest in seclusion is concerned.
increasing intrusion bv the press into the priate lies o politicians. members o the roval amilv and
members o the public generallv lead to the appointment o a committee chaired bv Daid (alcutt O( in
1990 (alcutt. 1990,. 1hat committee concluded that the case or a statutorv tort o inasion o priacv
had not been made out. but made seeral recommendations to strengthen the existing sel-regulatorv
svstem o the Press (ouncil. loweer. a urther reiew carried out in 1993 (alcutt. 1993, concluded that
the recommendations suggested had not worked. Subsequentlv 1993,. the Lord (hancellor`s Department
has published a consultation paper on whether there should be a statutorv tort o inringement or priacv.
So ar. there has been no legislation orthcoming. loweer. while the press continues to irritate politicians
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and members o the roval amilv bv disclosing details o salacious gossip. the likelihood o such an Act
increases. Politicians are notoriouslv caalier about ree speech where their personal interests are aected.
(ertainlv. while the inconsistencies and inadequacies o the existing law remain it is unlikelv that the issue
will go awav. low ar the law should protect interests in personalitv is likelv to remain an area o great
controersv.

I priacv rights are the subject o ew protections in Lnglish law. the same cannot be said o the USA
where the law relating to the protection o priacv is relatielv well deeloped i erraticallv eectie.
Interestinglv. the impetus or this deelopment came rom an article written in 1890 bv \arren and
Brandeis \arren and Brandeis. 1890,. which reiewed a number o. predominantlv Lnglish. cases and
concluded that thev were based upon a broader principle that was entitled to separate recognition. 1odav
the law in the USA mav be said to encompass our distinct kinds o inasions o what mav compendiouslv
be called a right to priacv. 1he irst orm o inasion o priacv relates to the appropriation o another`s
name or likeness. \here. without the consent o the plainti. the deendant appropriates the plaintis
name. picture or other likeness or his own beneit or adantage then an action will lie. \hile the action
mav protect the plainti`s eelings. the eect o the decisions has been to create an exclusie right in the
indiidual plainti to a species o trade name. his own. and a kind o trade mark in his likeness.` Prosser
and Keaton. 1984. p. 854,. In addition to those cases where the deendant has appropriated another`s
name or likeness or his own purposes. the action has been held to exist in relation to the appropriation o
a catchphrase Car.ov r. ere`. obvvy Portabte )oitet. vc 1983, 698 l 2d 831, and. in some states. to
continue to subsist or the beneit o the estate, ater the other`s death Mevpbi. Deretopvevt ovvaatiov r.
actor. tc. ta 1980, 616 l 2d 956,.

Second. most states recognise a right to be ree rom unreasonable intrusions`. An action mav lie where a
person. whether bv phvsical trespass or not. intereres with another`s interest in solitude or seclusion.
either as to his person or to his priate aairs or concerns Restatement Second o 1orts. s. 652B,. 1he
tort has been held to extend to such matters as eaesdropping on priate conersations and bugging. as
well as to persistent and unwanted telephone calls. 1hird. i a deendant makes public priate acts that
would be highlv oensie and objectionable to a reasonable person and the public has no legitimate
interest in haing the inormation made aailable. then an action mav lie. 1he concept o legitimate public
interest is inspired bv the irst amendment and thereore is interpreted expansielv` Anderson. 1994. p.
634,. 1hus. the public is usuallv legitimatelv interested in the goings on o public igures and oicials.
linallv. an action mav lie where the plainti is placed in a alse light in the public eve`. Such an action
most tvpicallv exists where some iew or utterance is alselv attributed to the plainti. (loselv related to
the tort o deamation. the action is subject to constitutional limitations in the interests o presering
reedom o speech. \hile. it is suggested. wholesale adoption o the American approach would not be
sensible. there is much to be said or introducing an action or appropriation o personalitv or
commercial use. \hether such an action reallv protects priacv as such. howeer. must be doubtul.
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1he remainder o this chapter looks at the protection aorded to a person`s reputation bv the law o
deamation.

4.6.2 1he Law of Defamation
1he law has rom the earliest times recognised the making o alse statements about another as a wrongul
act. 1he high alue accorded to a person`s reputation has led to irtuallv eerv legal svstem in the world
aording it protection. In Lnglish law. this unction is perormed bv the law o deamation. \hile a
reputation is deseredlv aorded substantial protection bv the law. the need to protect reputation must be
balanced against the competing demands o ree speech. No svstem o law does or should oer absolute
protection or reputation. 1his is particularlv the case where the maker o the statement is discussing a
matter o public interest. One o the concerns. thereore. o the law o deamation is to achiee a
satisactorv balance between these two interests. 1he diicultv o achieing this balance has led to the
deelopment o an area o law o considerable complexitv.

In order or a statement to be actionable in the tort o deamation a deamatorv statement must be
published about the plainti to a third person. In the case o slander actual injurv must also be proed.
Lach o these elements o the tort will now be considered in turn.

4.6.3 1he Statement must be Defamatory
A deamatorv statement is one which aderselv aects a person`s reputation. Vulgar abuse or insulting
name-calling will not generallv be deamatorv because such behaiour is usuallv onlv insulting to a
person`s pride and does not aect his reputation. loweer. as the recent case o er/ott r. vrcbitt |1996| 4
All LR 1008 illustrates. those who indulge in gratuitous insult must take care i their statements are not to
be characterised as deamatorv. In that case. the (ourt o Appeal. bv a majoritv. held that the statement
that Mr Berko. the well-known actor and plavwright. was hideouslv uglv` was capable o being
deamatorv o him because it might make him an object o ridicule in the eves o the public.

1raditionallv the test as to whether or not a statement was deamatorv was whether the words complained
o brought the plainti into hatred. ridicule or contempt`. loweer. the diicultv o bringing some
statements which appeared to aderselv aect a person`s reputation within the traditional deinition led
Lord Atkin in iv r. tretcb |1936| 2 All LR 123 to put orward a broader test. le said:

|1|he conentional phrase exposing the plainti to hatred. ridicule or contempt` is probablv too
narrow ... I do not intend to ask vour Lordships to lav down a ormal deinition. but ater collating the
opinions o manv authorities I propose in the present case the test: would the words tend to lower the
plainti in the estimation o right thinking members o societv generallv`

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Although this test is in almost uniersal usage it remains the case that there is no whollv satisactorv test o
what is deamatorv see per Neill LJ. er/ott r. vrcbitt,.

\hether or not a statement is capable o being deamatorv is a question o law or the judge. \hether or
not it is in act deamatorv is one o act or the jurv lox`s Libel Act 192,. It is the tendencv o the
words themseles. howeer. that is important and not the intention o the maker o the statement. 1hus.
words mav be held to be deamatorv notwithstanding that no deamatorv meaning was intended vttov r.
ove. |1910| A( 20,.

In considering the standard to be applied when determining whether or not the words used are
deamatorv the courts hae not been whollv consistent. 1he ormulation most used is that o the right
thinking man` or the good and worthv subject o the |Oueen|`. 1he question asked is. thereore. whether
the right thinking man` would construe the words in a wav deamatorv o the plainti. It mav. o course.
be a controersial question what the right thinking man` would think. lor example. would the right
thinking man` consider that an allegation that a woman had been raped. or that she was not a irgin when
she married. lowered her in the estimation o societv Similarlv. would a right thinking man` consider that
an allegation o insanitv or alcoholism lowered a person`s reputation It mav be that the courts in
considering what the right thinking man` thinks are inclined to look to what he .bovta think rather than
what he does in act think. A good illustration o this tendencv is seen in the case o yrve r. Deave |193| 1
KB 818.

In that case automatic gambling machines. which were kept illegallv on the premises o a gol club. were
remoed bv the police ater someone had inormed them o the machines` presence. A erse appeared
soon ater this on the notice-board o the club. 1he last two lines o the erse read. |B|ut he who gae the
game awav. mav he bvrnn in hell and rue the dav`. 1he issue or the (ourt o Appeal was whether the trial
judge had been correct to leae to the jurv the question whether the words were deamatorv o the
plainti. Mr Bvrne. in the sense that thev meant he was guiltv o underhand dislovaltv to his ellow
members. 1he court held that the words were not capable o a deamatorv meaning as no good and
worthv subject o the King` could consider such an allegation against a person to be deamatorv. 1hus the
case should not hae been let to the jurv.

As Greene LJ admitted in his judgment. manv people in the countrv would not consider anv moral
reprobation attached to the plaving o gambling machines. 1hus. or them at least. the allegation made
against the plainti-whom thev might regard as oicious-could be deamatorv. \hv should not the
question o whether the words are deamatorv be judged according to what thev think 1he answer gien
bv the court to this is that it is alwavs possible to discoer a small group in societv who would not ind the
words complained o deamatorv. lor example. among certain groups to describe someone as a
proessional thie would be a compliment. 1he ordinarv meaning o words cannot be let to such
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antisocial groups but must instead be considered bv a more respectable bodv o opinion. loweer. it must
not be assumed that a bodv o opinion is anti-social merelv because it is opposed bv the majoritv.

In deciding whether or not the words used are in act deamatorv the jurv is asked to consider the
meaning o the words in their natural and ordinarv` sense. In manv cases o course the words used onlv
hae one meaning and that meaning is clearlv deamatorv. loweer. a word mav be capable in its ordinarv
usage o haing more than one meaning. lor example. in one case a woman was described as an
international boot`. 1hree dictionarv` meanings were considered: irst. that a boot was a tvpe o ootwear
unlikelv to hae been the apprehended meaning!,: second. that boot meant a phvsicallv unattractie
person: inallv. the meaning that was accepted bv the jurv. that boot meant a promiscuous person. \here
more than one natural and ordinarv meaning is possible and pleaded it is let to the jurv to decide which
meaning the words hae. Len though a publication mav conev dierent meanings to dierent readers
the jurv is required to determine the .ivgte meaning that the publication coneved to the notional
reasonable reader Cbarte.tov r. ^er. Crovp ^er.paper. ta |1995| 2 All LR 313,.

In determining whether a particular statement is deamatorv it must be read in context. 1hus. i one
statement in a larger publication appears to be deamatorv o the plainti when looked at in isolation but
is eidentlv not deamatorv when looked at in context then no action will lie: the bane and the antidote
must be taken together.` per Alderson B in Cbatver. r. Payve 1835, 2 (r M & R 156. at 159, But. it is o
course the case that not eerv reader reads with the same care. Reading a Sundav newspaper. or example.
one`s eve is ineitablv drawn to some things and not others. Such publications are simplv too large. and
uninteresting. to read in ull. (ould a plainti written about in such a publication argue that. i some
reasonable readers would conclude on reading part or example. a headline, in isolation that it appeared
to lower the plainti`s reputation. an action could lie 1his question was considered but answered in the
negatie bv the louse o Lords in the recent case o Cbarte.tov r. ^er. Crovp ^er.paper. ta |1995| 2 All
LR 313. 1he court recognised that readers o newspapers read selectielv but neertheless held that it was
a undamental principle o the law o deamation that the publication must be read as a whole.

In some cases the plainti mav wish to allege that the meaning that ought to be attributed to the words is
not their ordinarv and natural meaning but is instead a meaning that can onlv be drawn bv inerence or
implication. or perhaps onlv rom the use o eidence separate rom the statement itsel. In both cases
words or statements apparentlv innocent mav vet be ound to be deamatorv. \here the words do not
speak or themseles. the plainti mav. i he is to succeed. hae to proe the necessarv innuendo.
Innuendos are either true` or alse`. Some words mav hae popular or slang meanings dierent rom their
ordinarv and natural meaning: meanings in other words that do not speak or themseles. Such a meaning
is reerred to as a alse or popular, innuendo. Unlike a true innuendo. it does not need to be separatelv
pleaded. but in the light o the eigned, judicial ignorance o slang such a course mav be wise. A true
innuendo is an innuendo bv which the plainti alleges that the words bear a deamatorv meaning distinct
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rom their natural and ordinarv meaning which mav be whollv innocent,. which can onlv be established
bv reerence to extrinsic eidence. 1hus. although a statement mav appear innocent. knowledge o acts
separate rom the statement mav make it deamatorv. Because a true innuendo constitutes a cause o
action separate rom anv arising in relation to the words in their ordinarv and natural meaning it must be
separatelv pleaded.

An example o a alse or popular, innuendo can be seen in eri. r. Daity )etegrapb |1963| 2 All LR 151.
1wo newspapers published a storv in which it was reported that oicers o the London lraud Squad were
inquiring into the aairs o the R (o and its subsidiarv companies`. 1hree possible meanings were
considered bv the louse o Lords. lirst. that there was an inestigation in progress. Second. that the
plaintis were suspected o raud. linallv. that the plaintis were guiltv o raud. Lord Reid held that in
determining the meaning to be gien to the words the question to be asked was what meaning would be
coneved to the ordinarv person. Such a person does not lie in an iorv tower and he is not inhibited bv
a knowledge o the rules o construction. So he can and does read between the lines in the light o his
general knowledge and experience o world aairs.` 1heir Lordships held that onlv the irst two meanings
were possible. It was impossible in this case. thev said. or the statement that an inquirv was taking place
to conev the impression that the subject o the inquirv was gvitty o raud. Acceptance o the second
meaning. that the plaintis were suspected o raud. inoles a alse innuendo. No extrinsic eidence is
required or this meaning to be attributed: it is simplv an implication that can be drawn or an impression
that mav be gained rom a reading o the words themseles.

\here the meaning that the plainti is seeking to establish can onlv be ascertained bv the use o extrinsic
eidence this is known as a true innuendo. A true innuendo arises solelv rom acts or circumstances that
are not apparent rom the words themseles and that gie the words a meaning thev would not ordinarilv
hae. A good illustration o a true innuendo can be seen in the case o Ca..iay r. Daity Mirror ^er.paper.
ta |1929| 2 KB 331. In that case the deendants published a photograph taken o Kettering (assidv. also
known as Michael (orrigan. and another woman. Below the photograph were the words: Mr M. (orrigan.
the race horse owner. and Miss X. whose engagement has been announced.` Mr (assidv had told the
photographer o this announcement. 1he action was brought bv Mrs (assidv. who was in act the lawul
wie o (assidv: although thev lied apart. (assidv occasionallv isited her. She argued that the words and
picture were capable o meaning that (orrigan` was a single man and that. thereore. she was liing in
immoral co-habitation with him. 1he (ourt o Appeal held that the publication was capable o bearing
this deamatorv meaning. On their own. the words and picture were not deamatorv. loweer. in the light
o the extrinsic eidence that (assidv was in act married. a deamatorv meaning was possible. It did it
matter that the deendant newspaper did not know o the extrinsic acts. proided that the paper had been
read bv those who did and who understood the statement to applv to the plainti.

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4.6.4 1he Statement must be published to a 1hird Person
1he law o deamation is concerned. as we hae seen. with the protection o a person`s reputation in the
eves o other people. As a person`s reputation is. in simple terms. the opinion or iew that others hold o
him. it ollows that unless the statement is published to a third person there can be no damage to the
person`s reputation. I nobodv but the maker o the statement and the person about whom the statement
was made know o the contents o that statement. how can the statement hae aected the person`s
reputation in the eves o his ellow man In light o this concern. Lnglish law required that the deamatorv
statement must be published to someone other than the person whose reputation is impugned.

Publication. them. is the communication o a daematorv statement to someone other than the plainti.
An unexpressed deamatorv thought or een the writing o such a thought on paper will not be actionable
unless and until it is actuallv communicated to another. 1he publication must also be made to a person
capable o understanding the deamatorv meaning. \here. or example. the statement is not deamatorv
on its ace but is onlv deamatorv when considered in the light o extrinsic eidence a case o true
innuendo, the hearer must know o the extrinsic acts that make the statement deamatorv. More
obiouslv. i a deamatorv statement contained ina letter is written in a oreign language the recipient must
be able to understand that language.

It is not necessarv or the plainti to proe that the publication was intentionallv made. As long as he can
show that the deendant ought reasonablv to hae oreseen that the statement would come to a third
partv`s attention the requirement o publication will be satisied. 1hus in )bea/er r. Ricbara.ov |1962| 1
\LR 151 the deendant wrote a deamatorv letter to the plainti who was a married woman. 1he letter.
which was addressed to the plainti. was contained in a manilla enelope similar to the kind used or
distributing election addresses. 1he plainti`s husband opened the enelope thinking it was an election
address. At the trial the jurv ound there had been a publication o deamatorv statement and awarded
damages to the plainti. On appeal to the (ourt o Appeal. Pearson LJ said that the question that should
be asked was. |\as| his i.e. the recipients, conduct so unusual. out o the ordinarv and not reasonablv to
be anticipated. or was it something which could quite easilv and naturallv happen in the ordinarv course o
eents` 1his was pre-eminentlv a jurv question and because the jurv had decided that the opening o the
letter bv the husband was something that could quite easilv happen in the ordinarv course o eents the
(ourt o Appeal would not interere with its decision. Bv wav o contrast. the (ourt o Appeal held in
vtb r. vtb |1914-15| All L Rep 242 that. where a husband sent a deamatorv letter to his wie. the act
that it had been opened and read bv the butler did not constitute publication. As Lord Reading (J said. it
is no part o a butler`s dutv to open letters that come to the house o his master or mistress addressed to
the master or mistress.`

Lerv repetition o a deamatorv statement is a new publication and creates a resh cause o action in the
person deamed. 1he person repeating the statement will be treated in the same wav as i he had
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originated it. lurther. a deendant cannot escape liabilitv simplv bv putting a preix such as. it has been
rumoured that.` or. I hae been told that.`. beore the allegation and then asserting that it was true that
there was such a rumour or that he had in act been told what he had then repeated. Such a hearsav`
statement is treated as i it were a direct statement: thus. the person who repeats the rumour will hae to
proe the truth o the allegation to escape liabilitv and not just that there was such a rumour in existence
see. or example. terv r. Piper |1996| 3 All LR 385,. 1his principle is sometimes known as the rumour`
doctrine.

Although eerv repetition creates a new cause o action. common sense dictates that liabilitv must cease
somewhere. \hile there mav be good arguments o policv or holding liable those primarilv inoled in
the publishing process such as author. publisher and editor,. less reason exists or imposing liabilitv on
those more tangentiallv inoled such as libraries. printers and booksellers,. 1hose onlv tangentiallv
inoled hae little control. i anv. oer the content o anv publication and oten hae no reason to
suspect that anv statement it mav contain might be deamatorv. 1o expect them to read or libel eerv line
o all the material that thev distribute is clearlv ridiculous. At common law such mechanical` publishers
could relv on the deence o innocent dissemination. In 1i.etetty r. Mvaie.` etect ibrary ta |1900| 2 OB
10 the deence` whether it is reallv a deence or a ailure to make out the publication` element o the
cause o action is not clear, was held to be aailable where the deendant could proe a, that he was
innocent o anv knowledge o the libel: b, that there was nothing in the work or in the circumstances in
which it came to. or was disseminated bv. him which ought to hae led him to suppose it contained a libel:
and c, that when the work was disseminated bv him it was not bv anv negligence on his part that he did
not know it contained a libel.

1he exact scope o the deence was. howeer. bv no means clear and recent changes in technologv hae
made it still less so. 1he new s. 1 o the Deamation Act 1996 was enacted with the intention o codiving
the existing law while. at the same time. modernising it. 1he deence can now be relied upon. ivter atia. bv
the broadcaster o a lie programme that contains the statement in circumstances where the broadcaster
has no eectie control oer the maker o the statement e.g. talk radio: sl3,d,,: the operator. or proider.
o access to a communications svstem such as an Internet site, bv means o which a statement is
transmitted: and persons responsible or processing. making copies o. distributing or selling anv
electronic medium such as (D-ROMs and loppv disks, in or on which the statement is recorded s.
l3,c,,. 1he conditions or the existence o the deence are ound in s. 11, o the Act. 1his proides that
a person shall hae a deence i he shows thata, he was not the author. editor or publisher deined in s.
12,, o the statement: b, he took reasonable care deined in s. 15,, in relation to the publication: and. c,
he did not know. and had no reason to beliee. that what he did caused or contributed to the publication
o a deamatorv statement. 1his amounts. in part. simplv to a codiication o the common law deence.
loweer. as Patrick Milmo O( has pointed out 1996,. the new proision. in one important respect. has
restricted the scope o the deence. At common law. the deence had been aailable to a distributor who
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had no knowledge that the publication in question contained the tibet. Under s. ll,c, o the Act. howeer.
the deence is aailable onlv i he did not know. and had no reason to beliee. that what he did caused or
contributed to the publication o a aetavatory .tatevevt. 1he distinction is important because while those
such as newsagents and booksellers mav be aware that publications thev sell contain deamatorv
statements. thev are requentlv assured bv the publishers that such statements are true: in other words.
that there is no tibet. At common law onlv where the risk o tibet. and not simplv the risk that the
publication contained aetavatory .tatevevt.. was ignored would the deence not exist.

A related question was considered bv the (ourt o Appeal in tipper r. riti.b roaaca.tivg Corporatiov |1991|
1 OB 283: is the original maker o the statement liable or subsequent republications o his statement bv
others 1he (ourt o Appeal held that the law relating to republication in deamation cases is simplv an
example o the rule o causation encapsulated in the Latin phrase vorv. actv. ivterreviev.` amiliar
throughout the law o tort |.|. 1hus. in anv case inoling the repetition o a libel the ollowing question
should be asked: was it a oreseeable or natural and probable consequence o the libel that the third partv
to whom it was published would repeat it

4.6.5 Reference to the Plaintiff
1he third essential requirement to ound an action or deamation is that the statement reers to the
plainti. \here the plainti is expresslv mentioned bv name there will usuallv be no diicultv. loweer.
it is not essential that the plainti be expresslv reerred to. In Morgav r. Oabav. Pre.. ta |191| 2 All LR
1156 or example. the plaintis claim succeeded despite the act he was not expresslv reerred to. 1he
deendants published an article that stated that a girl had been kidnapped bv a dog-doping gang. 1he girl
had in act been staving oluntarilv with the plainti around this time. At the trial the plainti produced
seeral witnesses who said that thev thought that the article reerred to him. 1he louse o Lords held that
in determining whether the article reerred to the plainti. the test to be adopted was to ask whether a
hvpothetical sensible reader who knew o the special acts` could reasonablv come to the conclusion that
the article reerred to the plainti. Such a reader is not expected to read a newspaper article with the care
that a lawver would read an important legal document. It is accepted that he mav read it quicklv in order
to get a general impression. \hat is important is the inerences that such a reader would draw rom the
article. On the acts o the case. despite the act that a close reading o the article would hae made it clear
that it could not hae reerred to the plainti. their Lordships upheld the jurv`s decision.

1he act that the deendant in making the statement did not intend to reer to the plainti has been held
bv the courts to be irreleant. In vttov r. ove. |1910| A( 20 Artemus Jones. a barrister. brought an action
against the deendants in respect o a newspaper article that he claimed reerred to him. 1he article
reerred to Artemus Jones` a church warden in Peckham and cast imputations on his moral behaiour at a
motor estial in Dieppe. 1he deendants argued that thev had neer intended the article to reer to the
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real` Artemus Jones but instead had intended to create a ictitious character. 1he louse o Lords held
that the deendants` intentions were irreleant. Lord Loreburn said |A| person charged with libel cannot
deend himsel bv shewing that he intended in his own breast not to deame. or that he intended not to
deame the plainti. i in act he did both.` 1he test to be applied was to ask whether a reasonable person
would consider in all the circumstances that the article reerred to the plainti.

In ^er.teaa r. ovaov pre.. ^er.paper ta |1940| 1 KB 3 the (ourt o Appeal applied the principle o
vttov r. ove. to the situation where the deendant had intended to reer to a person about whom the
statements were true but the plainti said that the statement also reerred to him and was deamatorv.
Proided a reader o the article would reasonablv think that the statement reerred to the plainti it is no
deence or the deendant to proe that the words were intended to reer to another person o whom thev
were true.

\here words are spoken o a group o people proo that the article reers to a particular member o the
group is likelv to be diicult. I a person was heard to sav all lawvers are thiees`. such a statement would
be unlikelv to gie rise to a cause o action on the part o anv indiidual lawver. 1he act that proo o
reerence in such a case is diicult does not mean that no group deamation` will be actionable at the suit
o a member o that group. In Kvvppter r. ovaov pre.. ^er.paper. |1944| A( 116 the louse o Lords
was asked to consider whether the trial judge had been correct to hold that an unlattering article
concerning the actiities o a pro-German group reerred to the plainti. 1he membership o the British
branch o the organisation. o which the plainti was head. numbered about 24. 1he louse o Lords held
that the article could not be understood as reerring to him. As Lord Atkin pointed out. there was no
special rule to be applied where group deamation was concerned: the onlv releant rule is that in order to
be actionable the deamatorv words must be published o and concerning the plainti.` le accepted that
this was likelv to be diicult in most group deamations. loweer. in two situations apparent group
deamations` mav be capable o reerring to indiidual members o that group: irst. where the words are
spoken o a group which is so small or so ascertainable that the words spoken o the group are necessarilv
said o each indiidual member: second. where although the words purport to reer to a group thev can in
act be read as applving to a particular indiidual or instance. where his photograph appears next to the
deamatorv words,.
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5. Criminal Law
142


In this |section| we will irst consider the general principles o criminal responsibilitv. then outline the
elements o a number o speciic crimes. and inallv discuss the law relating to compensation or criminal
injuries.

5.J 1he General Principles of Criminal Responsibility
5.J.J 1he Nature of a Crime
(rimes are oences against the State: in this. as we shall see. thev dier rom breaches o contract or o
trust and rom torts. which are all either solelv or primarilv wrongs to indiiduals. 1he object o criminal
proceedings is to punish the oender or to ensure. bv some means other than punishment. that he does
not repeat his oence: the object o ciil proceedings is to satisv the claim o the partv injured.

Since crimes are oences against the State. the State takes the initiatie in prosecuting criminals: the
(rown is in theorv. though usuallv not in practice. alwavs responsible or conducting prosecutions. and
criminal proceedings are conducted in the name o the Oueen. 1hus i Jones commits a murder the
ensuing trial will be called the case o R an abbreiation o Regiva` 1he Oueen, r ove.. On the other
hand i Jones merelv breaks his contract with Smith. who sues him. this ciil action will be called vitb r
ove.. or in this case the (rown has no interest in the matter bevond seeing that justice is done between
the parties.

It must not be imagined that because crimes dier rom ciil wrongs the same set o acts can neer
constitute both a crime and a ciil wrong. or criminal law and ciil law oerlap at manv points. 1hus i X
takes \`s motor car without his consent X`s act mav. in manv kinds o circumstances. constitute both the
crime o thet and the tort o conersion.

5.J.2 Criminal Responsibility
Since criminal proceedings mav result in punishment it is onlv just that the mere doing o a prohibited act
should not generallv be held to constitute a crime. 1he common law alwavs insisted that there shall be no
coniction unless the accused had a guiltv mind` vev. rea`,. 1his requirement is commonlv expressed in
the words o the ancient maxim: .ctv. vovtacit revv vi.i vev. .it rea` the mere doing o an act will not
constitute guilt unless there be a guiltv intent,.

1he term guiltv mind`. or guiltv intent`. when used in this context. is not capable o precise deinition: or
the courts hae. rom the earliest times. applied common sense rules in determining when such a state o
mind exists. 1hus. i a person commits a criminal act. such as poisoning another person`s ood. and there

142
James. P.. ave.` vtroavctiov to vgti.b ar. Oxord Uniersitv Press. 1996. pp. 159-195.
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86
is eidence rom the surrounding circumstances. or rom his declared moties. that he ivtevaea to kill the
other person his guiltv state o mind mav reasonablv be inerred. So too. an act in itsel comparatielv
innocent mav argue a guiltv` state o mind i it is one which is clearlv calculated to lead to eil
consequences. lor instance where a prostitute buried her child beneath a pile o leaes and a kite soon
aterwards struck at it and killed it. it was held that she was guiltv o murdering the child: or kites were
common in Lngland in those davs. and the risk that the child would be attacked was so great that it was
clear that the woman intended the death )be artot`. Ca.e 1560, (rompton`s Justice. 24,.

It cannot be pretended. howeer. that the ormulation o a test or determining the existence o a guiltv
intention as opposed to the ormulation o the nature o the required intent itsel, is a simple matter. lor
intention is a state o mind incapable o positie proo: and vet the prosecution must normallv establish it.
Needless to sav. the delicacv o this operation has led to controersv. 1here are those who belieeand
indeed it has at the highest leel been ruledthat it ought to suice to establish obiectirety that what the
accused brought about e.g. the death o the ictim, was a natural consequence o what he did. so that he
must be ta/ev to hae intended the death. But there are also those who beliee that the judgment ought to
be .vbiectire: that it ought to be established that the intent was actuallv tbere. Since o course the latter task is
latlv impossible the conlict between the opposing iews is reallv no more than one o degree o proo.
loweer. or the present at least the argument appears to be settled bv the (riminal Justice Act 196. s 8
in aour o the latter iew. 1he section proides that A court or jurv. in determining whether a person
has committed an oence: a, shall vot be bound in law to iner that he intended or oresaw a result o his
actions bv reason onlv o its being a natural or probable consequence o those actions: but b, shall decide
whether he aia ivteva or oresee that result by reterevce to att tbe eriaevce. drawing such inerences rom the
eidence as appear proper in the circumstances.`

1his statutorv pontiication is calculated to engender urther controersies. At present it can be celebrated
with an obious logical corollarv. 1his arises rom the controersial decision in DPP r Morgav |195| A(
182 where the louse o Lords held that where a belie in some state o aairs is part o the essence o the
oence charged. non-belie will negatie the intent een i it be whollv vvrea.ovabte. 1he case was one o
rape in which neither the jurv nor anvone else gae the deendant credit or the unreasonable, non-belie
in the woman`s lack o consentor. to put it positielv. the unreasonable belie that she had consented:
so the coniction stood and no harm was done. And it mav be that the ruling should be treated as part o
the peculiarities o the crime o rape in which lack o consent must be proed. |.|

\heneer a speciic intent orms a part o the oence chargedi.e. it is the element o vev. rea in relation
to that oenceit must be prorea: thus where a man dressed up in a cassock. and read through a marriage
serice in a church because he had been asked to do so bv the husband` who had told him alselv that he
and the wie` were alreadv married and merelv wished to re-enact the ceremonv to please her mother. he
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was held not to hae contraened a statutorv proision orbidding the knowing and wilul solemnization
o marriages bv those pretending to be in holv orders. In the circumstances there was no real pretence and
no real intent to act illegallv.

1his general rule which requires not merelv an actv. rev.` a guiltv act`, but also vev. rea` beore a person
can be conicted o a crime is. howeer. subject to qualiications.

lirst. eerv man is pre.vvea to intend the natural consequences o his act: or. as has alreadv been
remarked. it is impossible to proe the existence o a state o mind conclusielv. lence. no one can escape
the consequences o committing a cold-blooded murder simplv bv saving that he did not intend to do it:
though. as has just been explained. the question o intention will be judged subjectielv (riminal Justice
Act 196. s 8,. But it must. neertheless. be repeated that the pro.ecvtiov vv.t vorvatty prore it. rbote ca.e
beyova rea.ovabte aovbt. lence i at the close o a case. upon reiew o all the eidence adduced on either
side. the court or jurv are let in reasonable doubt whether the accused reallv intended to commit the
criminal act charged. be vv.t be acqvittea. 1his proposition mav be illustrated bv !ootvivgtov r DPP |1935|
A( 462. In that case \ killed his wie bv shooting her and he was charged with murder. Some o the
eidence at the trial supported the inerence that the shooting was acciaevtat. 1he trial judge directed the
jurv that once the prosecution had proed that the accused had killed his wie. a presumption arose that
he had murdered her. and that it was the business o the deence to urnish eidence capable o displacing
this presumption. 1he louse o Lords held that the direction was wrong. because. since there was ivter
atia, eidence beore the court rom which the inerence that the shooting was in act acciaevtat might
reasonablv be drawn. it was the dutv o the prosecution to displace this inerence bv adducing suicient
eidence o an intent to kill. And it should be added that |.| a similar burden will lie upon the
prosecution where the eidence as a whole leaes reasonable doubt as to the existence o other grounds o
justiication or mitigation. such as sel deence. automatism |.|. proocation |.| or reasonable doubt as
to the aliditv o an alibi. 1hus the harshness o the presumption that a man intends the natural
consequences o his acts is oten counter-balanced bv the cardinal presumption o Lnglish law that a man
is pre.vvea to be innocent until the prosecution hae proed him guiltv bevond reasonable doubt. It must.
howeer. be noted that where insanitv is raised as a deence |.| or a statutorv deence which expresslv or
bv implication reerses the burden o proo is inoked the burden will lie on the aetevaavt.

In the second place. although the common law alwavs insisted upon the presence o vev. rea`. certain
statutes. in creating criminal oences. hae dispensed with this requirement and made some oences
ab.otvte`. i.e. punishable in the absence o vev. rea`. 1here are manv such statutes in orce at the present
time. 1he Legislature tends to dispense with the requirement o vev. rea` in the case o statutorv oences
such as the oence o unlawul possession o irearms under the lirearms Act 1968, or which the
penaltv is small. the damage to the public occasioned bv their commission is great. and the state o mind
o the accused would be exceptionallv diicult to establish with certaintv. Lxamples o statutorv oences
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o this nature are. or hae been. the oence o supplving speciied medicinal products without a
prescription o a medical practitioner. contrarv to the Medicines Act 1968. s 582,a,. and ailure bv a
bankrupt to account or anv substantial part o his estate under the proisions now repealed, o the
Bankruptcv Act 1914. s 151,c,. In reet r Par.tey |190| A( 132. howeer. the coniction o a
schoolteacher under s 5b, o the Dangerous Drugs Act 1965 or haing been concerned in the
management o premises used or the purpose o smoking cannabis` was quashed upon the ground that
the accused neither knew nor had the means o knowing o the objectionable habits o her beatnik`
tenants. 1he louse o Lords stressed that oences must not be construed as absolute` unless there is
adequate reason to suppose that Parliament intended to make them so.

1he principle that vev. rea` must normallv exist beore criminal responsibilitv can be imputed receies
urther illustration rom the act that normallv. in the criminal law as opposed to the law o torts, a
person will not be held responsible or the acts o his serants or agents i thev are carried out without his
authoritv. 1his rule is. howeer. subject to one exception. een at common lawthe case o public
nuisanceand to manv statutorv exceptions created in the public interest or or some other reason. lor
example. the Licensing Act 1964. s 1611, proides that i the holder o a justices` on-licence knowinglv
sells or supplies intoxicating liquor to unauthorized persons he shall be guiltv o an oence`. It has been
held. more than once under the proisions o this and similar statutes. that a licensee mav be held liable
where the prohibited acts are committed bv his serants or agents without his knowledge: especiallv where
he has delegated the management o the establishment to them. 1he reason or this strict construction has
thus been pithilv explained: I this were not the rule`. said an eminent judge. a publican would neer be
conicted. le would take care alwavs to be out o the wav`. It must be added that the general rule that
vev. rea is required mav be displaced where a statutorv oence concerns an issue o social concern. e.g.
public saetv. But een in that case vev. rea will still be required unless it can be established that the
imposition o strict liabilitv would promote the objects o the statute.

linallv. i it is in doubt whether the accused`s act or omission caused the injurv or damage complained o
the burden o establishing that it did lies upon the prosecution. |.|

5.J.3 General Lxemptions from Criminal Responsibility
Because the law generallv insists upon the presence o vev. rea` in order to establish guilt one would
expect the presence o certain actors. such as Mistake. Duress. Sel-Deence. Necessitv and Incapacitv to
aect criminal liabilitv to a greater or lesser extent. 1he irst our o these actors will be considered in this
section: Incapacitv will be considered in the next.

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Mistake
It will usuallv be a deence to a criminal charge or the accused to proe that he acted under a mistake o
act. But this rule is subject to three limitations: a, 1he mistake must be such that. had the true acts been
as the accused belieed them to be. he would not hae been guiltv o the oence in question. 1hus it will
not be a deence or a man who is accused o stealing a gold watch to proe that he thought it was a siler
one or that it was some other aluable object: but it will be a deence. as will appear. or him to proe that
he honestlv belieed. howeer unreasonablv contrarv to the true acts, that the watch was his own. b,
Mistake can onlv be relied upon where the alleged error relates to some act or acts essential to the charge.
1hus in R r ibbert 1869, LR 1 ((R 184. l seduced a girl o 14. le was charged. under the Oences
Against the Person Act 1861. s 55. with the oence o taking an unmarried girl under the age o 16 out o
the possession o her parents. 1here was no eidence to show that he knew that the girl had anv parents.
and she was in act at the time in the custodv o her ather. l was conicted. but the coniction was
subsequentlv quashed i.e. annulled on appeal, because on the acts as he belieed them to be l had
committed no oence: or he did not know that the girl had anv parents. In R r Privce 185, LR 2 ((R
154. on the other hand. P`s coniction upon a charge under the same section was upheld: he had
reasonable grounds or belieing that a girl whom he seduced was oer 16 though in act she was not, but
he did. neertheless. know that she was in the custodv o her ather. lis mistake as to her age had no
releance to the oence charged: he had made no mistake in relation to the crucial act that he had taken
her out o her ather`s care. c, In the case o an absolute` oence mistake is no deence. 1hus in R r
Mitter |195| 2 All LR 94. it was held that a person charged with driing on the road while disqualiied
cannot escape liabilitv bv proing that he honestlv but mistakenlv, belieed that he was on priate land.

Mistake o tar is no deence: the general rule is that no man is permitted to excuse himsel bv asserting
that he thought his unlawul act was lawul. 1he reason or this is similar to the reason or the rule
igvoravtia ivri. bava ecv.at` ignorance o law is no excuse,: in either case knowledge must be presumed. or
otherwise people could alwavs escape liabilitv bv pretending to the lack o it. Neertheless. the second rule
is sometimes relaxed where ignorance is ineitable: as in a case where a deportation order is made against
an indiidual without publication o anv kind. An unpublished law is one which a person cannot possiblv
know.

Duress
It is a deence to a criminal charge to proe that the oence was committed under the compulsion o
some other person. 1he deence o duress is not aailable to a person charged with murder. whether as
principal the actual killer, or as principal in the second degree the aider and abettor |.|,. Duress.
whether bv phvsical compulsion or bv means o threat. is aailable as a deence onlv i what is done or
threatened is such that it did cause the accused to act as he did and that in so doing he acted as a person o
reasonable sel-control would hae done. It is not essential that the threat should be immediate: thus
where a witness committed perjurv because a ruian in court at the time had threatened to beat her up`
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aterwards i she told the truth duress was held to be a good deence. Moreoer. i a person joins a gang
or organization which he knows mav bring pressure on him to commit a crime he will not be excused i.
subsequentlv. he does commit one under pressure. Although it is likelv that this rule will be abolished. a
wie who commits a crime. other than treason or murder. in her husband`s presence and under his
coercion` mav generallv escape liabilitv bv establishing the coercion. 1he word probablv signiies
something less dramatic than the kind o duress bv threats just mentioned: it probablv includes mere
mental domination. It is to be noted that while it is or the wie to proe the coercion. once duress` is
raised it is or the prosecution to displace the presumption o innocence which it raises.

It seems uncertain how ar it will aord a deence to a member o the orces to plead superior orders`.
1he correct rule probablv is that this deence will onlv aail where the act which the accused was ordered
to do was not maniestlv unlawul. A soldier. or example. who is ordered to shoot a prisoner. otherwise
than bv wav o lawul execution. would thereore be ill-adised to carrv out the order.

Self-Defence
1he reasonable use oeree in deence o onesel or o others. or in deence o one`s propertv. mav excuse
a crime: een homicide. But the success o the deence will depend upon whether the degree o orce
emploved was reasonable in the circumstances: thus i vou attack me with a pin I am not justiied in
retaliating bv throwing itriol at vou and i. although vour dog is chasing them. mv sheep are in no danger
o ivveaiate harm I am not justiied in shooting it. \hat is reasonable` is a question o act and it mav
indeed be one which aries with the climate o contemporarv opinion: or instance it is doubtul whether
the proposition made in R r v..ey 1924, 18 (r App Rep 160 that a man is entitled to kill anvone seeking
unlawullv to dispossess him o his home would be accepted todav. \et moments o extreme danger mav
justiv the instinctie taking o measures which. apart rom the agonv o the moment. would otherwise be
unreasonable. lurther. i the probabilitv o iolence to the deendant is contemplated bv him whether
reasonablv or not, although not actuallv imminent. this mav proide an excuse or doing some otherwise
unlawul act such as making a petrol bomb, intended to counter the apprehended iolence. ee .C`.
Reterevce t^o 2 ot ]) |1984| OB 456., On the other hand a mistake as to the degree o orce necessarv
will not excuse i it be induced bv oluntarv intoxication. A deendant is entitled to relv on a plea o sel-
deence though he is unable to proe that he demonstrated unwillingness to ight: though such
demonstration mav well argue that he was acting in sel-deence rather than or some other reason. Once
this deence is raised it is or the prosecution to proe that the deendant was vot deending himsel. not
or him to establish that he was.

Necessity
1here is little Lnglish authoritv on the deence o necessitv`. i.e. compulsion arising rom circumstances.
as opposed to the interention o another human being. A man who is pursued bv woles should
thereore resist the temptation o killing his companion and delaving the attack upon himsel bv throwing
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the corpse behind him: especiallv since in the one important decision on the matter. the colourul case o
R r Dvatey ava tepbev. 1884, 14 OBD 23. staring shipwrecked sailors who killed a cabin bov in order to
eed upon his bodv were held to be guiltv o murder.

It should inallv be noted that in eerv case where there is some extenuating actor which does not
proide a recognized ground o exemption. it is alwavs possible or the court to mitigate the punishment
according to the circumstances. and in extreme cases there is alwavs the possibilitv o commutation or
pardon. lor instance in the case last cited the sailors were sentenced to death. but the sentence was
subsequentlv commuted to one o six months` imprisonment.

5.J.4 Incapacity
(ertain persons are treated in law. to a greater or lesser extent. as being incapable o criminal responsibilitv:
People o Unsound Mind. Drunken Persons. Minors and (orporations.

Unsoundness of Mind
1his mav negatie criminal responsibilitv in a number o wavs. 1here are two main aspects to be
considered: either the condition o the accused mav be such that it amounts to insanitv or it mav be that
he is suering rom such mental abnormalitv as to diminish his responsibilitv.

v.avity mav excuse at three possible stages. lirst. during custodv beore trial: when this happens the
lome Secretarv is entitled under the proisions o the Mental lealth Act 1983. proided that. amongst
other things. he considers it in the public interest so to do. to hae the accused detained in hospital. In
which case o course. unless he recoers. he will not be tried at all. In the second place. although brought
to trial the accused mav be ound unit to plead. lere the issue is whether he is capable o understanding
the conduct o the trial: that question must be tried bv a speciallv empanelled jurv. I he is then ound
unit the court must either a, order his admission to a mental hospital. or b, make a guardianship order. a
superision and treatment order or an order o absolute discharge unless the charge is one o murder
where a, is the onlv option.

In the third place insanitv mav be pleaded as a aetevce to tbe crive cbargea. In this sense insanitv` was deined
in the well-known rules laid down bv the judges in M`^agbtev`. Ca.e 1843, 10 (L & lin 200. 1hese rules
mav be summarized thus:
a, Lerv person is presumed to be sane until the contrarv is proed.
b, It is a deence to proe that. at the time o the commission o the act constituting the oence
charged. the accused was labouring under such a deect o reason. rom disease o the mind. as not
to know the nature and qualitv o his act. or i he did know this, that what he was doing was wrong.
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c, \here a criminal act is committed bv a man under some insane delusion as to the surrounding acts.
which conceals rom him the true nature o the act he is doing. he is under the same degree o
responsibilitv as i the acts were as he imagined them to be.

Normallv. as we hae seen. the burden o proo lies on the prosecution throughout a criminal trial. but the
presumption o sanitv creates an exception to this rule: or where insanitv is pleaded the aetevce must
establish on a batavce ot probabititie. that the accused was insane.

\hen at the trial o an accused person the jurv ind him to hae been insane within the meaning o the
M`^agbtev Rvte. at the time when he committed the crime charged. a special erdict o not guiltv bv
reason o insanitv` will be returned. Until 1991. the accused had to be ordered to be detained until the
lome Secretarv was satisied he was no longer a danger to the public. 1he (riminal Procedure Insanitv
and Unitness to Plead, Act 1991 substitutes new proisions in s 5 o the (riminal Procedure Insanitv,
Act 1964 and proides that the judge mav either a, order admission to a hospital or b, make a
guardianship order. a superision and treatment order or order an absolute discharge. I the charge is one
o murder. a, is once again the onlv aailable option. Until recentlv. a inding o insanitv being regarded as
an acquittal. there was no appeal against the erdict. 1his was unsatisactorv because not onlv did the
inding condemn the accused to indeinite coninement but it also precluded the possibilitv o his
succeeding upon some other deence e.g. alibi, which he might hae had. lor these and other reasons s
12 o the (riminal Appeal Act 1968. subject to saeguards. now proides a right o appeal to the (ourt o
Appeal and thence to the louse o Lords.

|vcovtrottabte ivpvt.e is not recognized as a deence in Lnglish law. But proo that the accused acted under
such an impulse mav be a releant matter to consider because impulsie acts are svmptomatic o some
orms o insanitv. lence proo o impulsie action mav sometimes be releant to establish such disease o
the mind as rendered the accused incapable o knowing the nature and qualitv o his acts or that thev were
wrong.

1he deence o aivivi.bea re.pov.ibitity was introduced in Lngland bv the lomicide Act 195. s 2. It is
speciicallv a deence to a vvraer charge. and i successullv established it has the eect o reducing the
coniction rom one or murder to one or manslaughter.

1his deence will be established where it can be proed on behal o the accused. on a batavce ot probabititie..
that he was suering rom such abnormalitv o mind whether arising rom a condition o arrested or
retarded deelopment o mind. or anv inherent causes. or induced bv disease or injurv, as substantiallv
impaired his mental responsibilitv or his acts and omissions in doing or being a partv to the killing`. It is
the dutv o the jurv to consider the issue broadlv and without reerence to the legal` insanitv o the
M`^agbtev Rvte.: in eect. in the majoritv o cases. thev must ask themseles Is the accused without being
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insane. neertheless on the borderline o insanitv` Medical eidence will be highlv releant but it need not
be accepted bv the jurv as conclusie. lere again. though uncontrollable impulse is no deence. proo o
its existence mav vet be releant because it mav suggest a state o diminished responsibilitv. \here. in a
murder trial. diminished responsibilitv is raised as a deence the prosecution mav adduce eidence o
insanitv. and where insanitv is raised. eidence o aivivi.bea re.pov.ibitity (riminal Procedure Insanitv, Act
1964. s 6,. lurther. i the deence pteaa. to a vvraer charge that the deendant is a person o diminished
responsibilitv and the plea is supported bv medical eidence a plea o guiltv to vav.tavgbter mav be
accepted.

Akin to the aboe deences is the plea o avtovati.v. 1here is no doubt that when a person commits a
crime while his mind is in a state o suspense he will not. at least in general. be held responsible or it.
Instances are where. at anv rate proided that his condition came about through no ault o his own. a
man kills another while he is in an hvpnotic trance or where he unwittinglv assaults another person ater
insulin has been administered to him. But or this deence to succeed a reasonable oundation or it must
be establishedsuch as eidence that the accused was in a trance: normallv obiouslv the mere statement
bv the accused that his mind was a blank` would not be enough. It has recentlv been stated in .C`.
Reterevce t^o 2 ot ]2) |1994| 4 All LR 683 that a state o impaired consciousness` is not enoughthere
must be a total destruction o oluntarv control on the part o the accused. But once such a oundation
has been established it will rest upon the prosecution to proe that the act was in act oluntarv i a
coniction is to be obtained. 1he dierence between automatism` and insanitv` as deences is that the
latter rests upon the act o ai.ea.e. such as epilepsv. while the ormer arises rom some external actor.
such as drugs. O course it must be obsered that where the case is one o insanitv the special erdict o
not guiltv bv reason o insanitv` must be returned. resulting in detention or the public saetv. or the
making o one o the alternatie orders mentioned aboe.

Drunken Persons
In bve-gone davs the law treated drunkenness proided that it was sel-induced, as no excuse or the
commission o a crime. but rather as an aggraating circumstance: in the words o Sir Matthew lale
1609-166,. bv the laws o Lngland a drunken person, shall hae no priilege bv this oluntarv
contracted madness. but shall hae the same judgment as i he were in his right senses`. But in modern
times this harsh rule has been relaxed. In the irst place. it is now recognized that excessie drunkenness
mav induce actual disease o the mind. as in the case o aetirivv trevev.. \here actual disease is thus proed
the accused will be treated in the same wav as anv other person o unsound mind. and the M`^agbtev Rvte.
will applv. In the second place. proo o drunkenness which induces a state o mind alling short o
insanitv mav sometimes sere to negatie the existence o some particular kind o intent necessarv or the
establishment o guilt. lor instance. malice aorethought |.| being an essential element in the deinition
o the crime o murder. where the accused can be proed to hae been so drunk at the time o the killing
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as not to be able to orm anv o the intents necessarv to establish such malice he cannot be guiltv o
murder: though such a state o mind induced bv the oluntarv taking o drink or drugs will be no excuse
in the case o a chargesuch as one o assaultwhere no speciic intent need be proed: nor will it be an
excuse where recklessness. rather than intent. has to be established. But o course. the accused would be
guiltv o murder. whateer the eects o the alcohol. i he were irst to orm the intent to kill and then to
get drunk in order to carrv it out. It must be stressed that. in this deence again. the onus is on the
prosecution under the !ootvivgtov principle |.|once there is some eidence beore the court that the
deendant was drunk. the prosecution must establish that. despite the drunkenness. he could orm the
necessarv intent and it is not the dutv o the deence to proe the reerse.

On the other hand. where the act o drunkenness is ot it.ett the essence o a charge as in the case o
driing under the inluence` under s 4 o the Road 1raic Act 1988. or o driing with an undue
proportion o alcohol in the blood under s 5 o the Act, it is. o course. useless to call in aid the erv thing
that constitutes the oence in order to attempt to proe the absence o intention. lurther. proided that
the accused is capable. at the time o the commission o the crime charged. o orming the appropriate
intent it will be no excuse or him to show that alcohol aected his powers o sel-controlinduced him.
or example. to gie wav to some iolent passion to which he would not normallv hae succumbed. 1hus
we shall see that in certain circumstances homicide mav be reduced rom murder to manslaughter where it
can be proed that the accused acted under proocation: but it will not aail him to show that. being
drunk. he was more easilv prooked than he would hae been had he been sober.

Although unlike the taking o alcoholic liquor, the taking o drugs is oten iv it.ett unlawul. the rules
goerning the general criminal responsibilitv o people aected bv drugs are in general similar to those
goerning alcoholic intoxication.

Minority
Up to the age o tev no one can be held guiltv o anv criminal oence. A child o oer ten and under ]1 is
pre.vvea to be incapable o orming a criminal intent: but this presumption mav be rebutted bv eidence
which proes that he knew that what he was doing was seriouslv wrong. 1he common law presumption
that a bov under the age o ]1 was incapable o sexual intercourse has been abolished bv the Sexual
Oences Act 1993. so it is now possible or such a person to be conicted o. or example. rape. It is
interesting to note that the age o complete criminal incapacitv at common law was seen vears: it was
raised bv statute to eight and then. again. subject to the rebuttabilitv o the presumption noted aboe. to
ten in 1963. Bv contrast the age o majoritv. was. as has been seen. lowered bv the lamilv Law Reorm
Act 1969 rom 21 to 18. Up one end. down the other: a paradox |.|

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Corporations
Under the old common law. when a large number o crimes were punishable bv death. it was generallv
accepted that corporations could not be held liable or crimes committed bv their serants or agents: or.
as it was said. \ou cannot hang the common seal`. lurther. until the passing o the (riminal Justice Act
1925. corporations could not be indicted.

In recent times there has. howeer. been an increasing tendencv to hold corporations criminallv
responsible or the acts o their serants or agents committed in the course o their emplovment. 1hev
hae. or example. been indicted or conspiracv and or inringement o tax regulations. low ar the
courts will go in thus remoing corporate immunitv in criminal matters still remains to be seen: it is clear
that there must be some limit to the relaxation o the older rules. or the artiicial nature o corporations
precludes their imprisonment just as much as the hanging o themindeed. thev can onlv be punished bv
ine. Moreoer. it is unlikelv that the intention to commit such crimes as rape or murder will eer be
imputed to corporations.

5.J.5 1he Classification of Crimes
1he distinction between ivaictabte and .vvvary oences has alreadv been noted. lere it must be explained
that until the coming into orce o the (riminal Law Act 196 (LA, crimes were diided historicallv into
three categories: trea.ov. tetovie. and vi.aeveavovr.in descending order o seriousness. Lach class had
special rules o procedure appropriate to it and certain rules o substantie law peculiar to it.

\hile making |.| a new distinction between arrestable` and other oences. the (LA s 1, abolished the
dichotomv between elonies and misdemeanours and made the law and practice relating to all oenders
sae treason, that which had preiouslv been applicable to misdemeanours. 1reason thus remains
separate. but. since the Act s 126,, also equiparated trial procedure in treason to that o murder. the onlv
important practical distinction between treason and other orms o crime is that it still retains special rules
in relation to the degrees o guilt o those who participate in it. 1he question o participation now alls to
be considered.

5.J.6 1he Parties to a Crime
1here are a number o possible degrees o criminal participation. Let us take examples: i, Suppose A and
B combine jointlv to commit a crime. e.g.. B holds ( while A assaults him: clearlv botb are gvitty as
principals` in the act. ii, Suppose B. without actuallv committing the crime. is present at the scene o it
encouraging its commission: e.g.. B connies while A stabs (. iii, Suppose B. without actuallv being on
the scene. assists A in the preparation o the crimelends him the knie to do the deedor counsels or
procures` the doing o it Accessories and Abettors Act 1861. s 8. as amended,. i, Suppose B. ater the
crime. assists A in concealing it: throws the knie into a pond ater A`s return. , Suppose while doing
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nothing actie to help. and knowing nothing o the deed. B listens to A`s storv o his exploit ater it is
done and then takes no steps to expose A to the authorities. In all these cases: i, actual participation: ii,
conniance: iii, assistance in preparation: i, subsequent assistance: , concealment o knowledge o the
crimethough less obiouslv in the remainder than in the irst. B has in one wav or another been a partv
to the crime. A`s position is clear. but what about B`s in eerv case except the irst

lormerlv the law in this ield was complicated bv the act that the position aried according to the
classiication o the crime committed. whether treason. elonv or misdemeanour. 1he (LA haing
assimilated the law relating to elonies to that o misdemeanours. what we hae to consider is what the
rule would ormerlv hae been had the crime in question been a misdemeanour. 1reason. howeer. still
stands apart.

Crimes Other 1han 1reason
Reerring to the aboe examples omitting the irst, the misdemeanour rule would hae been. and the
general rule now is. that where there is actire covviravce ii, or assistance iii, in preparation`aiaivg ava
abettivg`B will be treated in law. like A. a. gvitty ot tbe crive: except that technicallv B is not in these cases a
principal` criminal. \here. howeer. B merelv gies subsequent assistance i, or conceals his knowledge
o the crime , he will now though this used not to be so in the case o elonv, be guiltv o vo crime vvte..
he commits an arrestable oence` |.| which comes within the ollowing proisions o the (LA.

In the irst place the (LA. s 41, enacts that \here a person has committed an arrestable oence. anv
person who. knowing or belieing him to be guiltv o the oence or o some other arrestable oence.
does without lawul authoritv or reasonable excuse anv act with intent to ivpeae bi. apprebev.iov or pro.ecvtiov
shall be guiltv o an oence.` 1hus mere conniance ater the act will neer be a crime. but the example o
throwing awav the knie would becausing grieous bodilv harm being an arrestable oence. and the
concealing o the knie an act calculated to impede prosecution. 1here is. o course. no reason whv the
impeder should know the identitv o the criminal. In the second place. the (LA. s 51, makes it a crime
punishable with not more than two vears` imprisonment or a person to accept or to agree to accept anv
cov.iaeratiov other than making good anv loss caused bv the oence or making reasonable compensation
or that loss, or vor ai.cto.ivg ivtorvatiov about an arrestable oence which he knows or beliees to hae
been committed. 1here mav. howeer. be no prosecution or either o these oences without the consent
o the Director o Public Prosecutions.

1he position o the aiaer ava abettor ii, and iii, can gie rise to subtleties. lor example. the abettor mav
sometimes be guiltv o the oence while his principal is not. 1his position mav be illustrated bv the case
o the man who instigates a rape` committed bv another person who beliees the woman to be
consentingand who thus is vot guiltv o rape while his abettor. who is aware o the lack o consent. is.
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Again. an abettor cannot be guiltv o an oence graer than the oence actuallv committed bv the
principal: thus i ( instigates B to assault A intending that B shall occasion serious harm to A and B
merelv commits a minor assault on A. despite (`s intent he can onlv be conicted o unlawul wounding
rather than o the more serious oence o wounding with intent to do grieous bodilv harm. And inallv.
an interesting point was raised bv .C`. Reterevce t^o ] ot ]:) |195| 2 All LR 684. (an a generous host
who laces` the drink o a guest be conicted as abettor i the unortunate guest is subsequentlv charged
under the Road 1raic Act 1988. ss 4 or 5 aboe, 1he answer is \es` he mav be: but much must
depend upon the circumstancesor instance it mav be releant that the guest is unaware o the act that
the drink has been laced and it must be established that the guest`s condition at the time o arrest was in
act the result o the lacing. A urther reinement about aiding and abetting is that a person mav be guiltv
o it een i he did not know the exact nature o the crime committed bv the principal proided that he
did know that the latter intended to commit a crime o a similar kind. 1hus in DPP tor ^ortberv retava r
Marett |198| 3 All LR 1140 the louse o Lords held that where a man guided terrorists to a public
house which thev bombed it was no deence to him or he knew that thev were engaged in a terrorist
actiitv and that use o explosies was probable, to establish that he did not know that the terrorists had
brought explosies nor the exact nature o their abominable plan.

1reason
In the case o treason a person present and conniing at the scene o the crime or assisting in the
preparatiov or subsequent covceatvevt o it is treated in the same wav as the person who actuallv commits it:
i.e. he is a privcipat` to the crime. Moreoer. where anvone knows that treason has been committed or.
possiblv. een knows o a plot to commit it, and ails to disclose his knowledge to the authorities he will
be guiltv o vi.pri.iov` o treason: an oence or which he mav be imprisoned or lie.

5.J.7 Attempts
1he law relating to attempts to commit crimes is now contained in the (riminal Attempts Act 1981. A
person is guiltv o an attempt i with intent to commit an ottevce.a person commits an act which is vore
tbav verety preparatory to the commission o an oence` s 11,,. lurther. a person mav be guiltv o an
attempt, een though the acts are such that the commission o the oence is impossible` s 12,,. In this
connexion an oence` means an ivaictabte oence. but attempts. ivter atia,. to commit conspiracies and
attempts to aid and abet are excluded. But a person who aids and abets the commission o an attevpt to
commit a crime. is. neertheless. guiltv o aiding and abetting.

lurther. s 13,, a person mav be conicted o an attempt to commit an oence i he intends to commit
one een though the true acts are such that no oence could hae been committed. 1hus i Smith has
sexual intercourse with a girl o 16 no oence, he mav be conicted o an attempt i he tbiv/. she is 15
had she been. it would hae been an oence,.
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\hat amounts to something more than mere preparation` is a diicult question. (learlv to put a gun in
mv pocket intending to kill X i. mere preparation. Lquallv pointing the gun at X but being phvsicallv
preented rom iring is more than mere preparation`. It should be noted that s 12, settles what was
ormerlv a controersial point: it is now plain that the pickpocket who hopeullv inserts his hand into an
evpty pocket an impossible` thet, is guiltv o an attempt.

Section 41, proides that where a person is conicted o an attempt under s 1a, i the oence is murder
or anv other oence or which the sentence is ixed bv the law. the maximum punishment is lie
imprisonment. b, in the case o anv other attempt. the maximum is the same as is aailable to the court o
trial or the complete oence.

Akin to attempt` is ivcitevevt: as where a man oers. or pavment. to gie alse eidence in another`s
aour. lere. though the latter reuse the oer. the ormer has incited him to perert the course o justice
a crime. But the course o action incited must be a criminal course: hence i a man incites a girl under
16 to hae intercourse with him he cannot be guiltv o incitement because a girl o that age would commit
no oence i she permitted him to do so. 1hough this does not applv to incitement o the girl bv her
grandather. ather or brother because such ivcitevevt is an oence under the (riminal Law Act 19. s 54.,
I the man does hae intercourse he commits a separate oence.

It should also be noted that attempts to commit and incitement to commit conspiracv are no longer
oences (riminal Law Act 19. s 5,,.

5.J.8 Limitation of 1ime
As regards criminal prosecutions. the common law rule was expressed bv the maxim vvttvv tevpv. occvrit
regi` time does not run against the King,. A prosecution could be instituted at anv time ater the
commission o the crime. In theorv this is still the general rule. but there are statutorv exceptions. 1he
most important o these are that prosecutions or .vvvary oences must normallv be commenced within
six months o commission: and. in the case o certain motoring oences unless the accused is warned at
the time o detection that a prosecution mav be considered. a summons or notice o prosecution must be
sered within 14 davs.


5.2 Specific Crimes
lor the sake o conenience crimes mav be diided into three main categories: oences against the public
interest. oences against the person and oences against propertv.

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5.2.J Offences against the Public Interest
1here are a number o crimes which all under this head. 1he ollowing mav be mentionedtreason.
sedition. oences against the Oicial Secrets Acts. conspiracv. riot. iolent disorder. arav. ear or
proocation o iolence. harassment |.|. and perjurv. Some o these hae alreadv been discussed in the
last chapter. lere space will onlv permit us to outline the bare essentials o one o them. namelv
conspiracv.

5.2.J.J Conspiracy
1he Old Law
1he traditional law o conspiracv was the inention o the (ourt o Star (hamber which. in the earlv
1udor period. was concerned to buttress the new establishment. Just as. rom (axton. the printing press
constituted a threat to the establishment bv acilitating the dissemination o pamphlets so did
combinations o indiiduals: litlers or Napoleons apart. combinations are more dangerous than
indiiduals. 1o meet the ormer threat the Star (hamber started the oundations o the law o libel. 1o
meet the latter it created a new law o conspiracv. Literallv to conspire is to murmur together Latin.
cov.pirare - to breathe together, and a criminal conspiracv is essentiallv an agreement to do something
unlawul entered into bv two or more people who intend to carrv out the agreed purpose. \hat the Star
(hamber was concerned to do was to strike down agreements dangerous to the State. lence although the
aim o a criminal conspiracv might be the eecting. in conjunction with co-conspirators. o some object
such as assassination, which was a crime i done bv one person alone it might also be. as a matter o
policv an agreement to eect some to the establishment, undesirable political end which o itsel. i done
bv one person. was not unlawul. but onlv became so bv the act o combination. lor it was the
combination that was eared: a ear which. perhaps. in a dierent setting and in later times. the
deelopment o trade unionism has borne out. 1hus when. ater the abolition o the Star (hamber in
1641. the common law courts inconsequentlv took oer its jurisdiction. thev inherited the crime o
conspiracv. i.e. the crime o complicitv to eect an vvtartvt purpose: and thanks to its historv. unlawul`
did not onlv mean criminal` a combination to commit a recognized crime, but also whateer the courts
might consider wrong`: legallv. politicallv or morallv. 1he law o conspiracv could thus be a dangerous
instrument in the hands o courts subserient to unscrupulous administrations. or the judges could use
the element o combination to create new crimes. In iew o the general record o the judiciarv in
ounding the criminal law perhaps as good as. or better than. that o action-ridden modern parliaments,
perhaps. in settled times. this power was no bad thing: but in times o political riction as when. in the
nineteenth centurv the courts branded trade unions as criminal conspiracies, it could be undesirable.
Shorn. howeer. o this element o uncertaintv about the scope o the unlawul`. conspiracv could be a
useul means o ensuring that where people did agree to commit substantie crimes thev could be
prosecuted or the agreevevt to commit them i. or one reason or another. the substantie crime were
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either vot covvittea or could vot be prorea to hae been committed. Such was the state o the law beore the
(riminal Law Act 19 rom now (LA`. but not to be conused with the 196 Act,.

1he New Law of Conspiracy
1he law o conspiracv now rests upon the (LA. Bv s1, as replaced bv the (riminal Attempts Act 1981. s
51,,. in eect. the Act largelv conines the crime o conspiracv to agreements to commit ottevce.: that is.
crive.. 1his is a major change because onlv shortlv beore the Act the louse o Lords had held that. in
certain circumstances. an agreement to trespass on land a tort. not a crime, could be conspiracv. 1hus the
statutorv crime now onlv seres the purpose. just described. o ensuring that where there is an agreement
intended to be carried out between two or more people thev can be charged with the agreement as well as.
or alternatielv to. the crime itsel.

1he (LA. howeer. contains some exceptions. On the one hand it sets out circumstances in which an
agreement to commit a recognized crime cannot be charged as a conspiracv. and on the other hand it
recognizes as conspiracies certain agreements to do things which are not substantie crimes.

Crivivat agreevevt. rbicb are vot cov.piracie.. 1hese are i, Agreements s 242 o the 1rade Union and Labour
Relations (onsolidation, Act 1992, to commit a .vvvary oence not punishable bv imprisonment which
are made in contemplation or urtherance o a trade dispute`. ii, Bv s 21, it is enacted that a person shall
not be guiltv o conspiracv to commit anv oence o which he is the intended ictim`. So that i I agree
with vou that vou shall cut o mv nose a criminal oence, I cannot be charged with conspiracv. iii, Bv s
22, it is proided that a person shall not be guiltv o conspiracv, i the onlv other person or persons with
whom he agrees are a, his spouse: or b, a person under the age o criminal responsibilitv ten,: ava an
intended ictim o the crime,`. 1he spouse exception was recognized at common law as being part o the
unitv o husband and wie: the under-age exception is presumablv a concession to logic.

.greevevt. barivg vovcrivivat obiect. rbicb are cov.piracie.. 1hese are contained in s 52, and 3, and thev
remain goerned bv the common law. 1hev are: i, (onspiracies to aetrava: in respect o which people can
be prosecuted or such conspiracv een though the agreement does not enisage the commission o a
substantie oenceraud being a wide and general term which embraces objects which would not be
criminal. or een tortious. i thev were achieed. ii, Agreements to engage in conduct which a, tends to
corrupt public morals or outrages public decencv: and also b, would not amount to or inole the
commission o an oence i carried out bv a single person otherwise than in pursuance o the agreement.
1hus wiselv or unwiselv, leaing public moralitv within the keeping o the judiciarv.

Under the (LA as a general rulecontrarv to the ormer common lawa conspirator cannot be awarded
punishment greater than the maximum punishment prescribed or the substantie oence which is the
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aim o the conspiracv. 1here can. generallv speaking. be no prosecution o conspiracies to commit
summarv oences without the leae o the Director o Public Prosecutions. or. in some cases. o the
Attornev-General s 4,. lurther. as has alreadv been noted. the Act s 5,, abolishes the ormer oences
o attevpt and o ivcitevevt to commit conspiracies.

5.2.2 Offences against the Person
1he ollowing oences against the person will be selected or discussion: 1, lomicide. 2, Assault and
Batterv. 3, Rape. 4, Bigamv.

5.2.2.J Homicide
It should be stressed in the irst place that it is not necessarilv unlawul to kill a man. 1hus. death mav
occur bv misadenture` een where some person is instrumental in causing it: an attacker mav in certain
circumstances. be lawullv killed bv a person who is in the act o deending himsel: in extreme
circumstances a constable making an arrest or preenting an escape. or someone assisting him. mav
lawullv kill the criminal who oers iolence and o course the execution o the death penaltv where
lawullv inlicted bv the judgment o a competent court is lawul.

A common example o death bv misadenture occurs where a death happens during the plaving o a
lawul game. lor instance a batsman who kills a ieldsman standing at sillv point` bv driing the ball hard
in his direction will not be guiltv o anv crime. proided that his act was neither intentional nor grosslv
careless. 1he rules relating to sel-deence. which applv to a charge o homicide as well as to charges
inoling non-atal injuries. hae alreadv been mentioned |.|.

\e mav now brielv discuss the ollowing unlawul homicides: murder. manslaughter. the aiding and
abetting o suicide. and inanticide.

Murder
According to the classic deinition. murder comprises the vvtartvt /ittivg ot a rea.ovabte creatvre rbo i. iv beivg
ava vvaer tbe tOveev`.) peace. ritb vatice atoretbovgbt . tbe aeatb tottorivg ritbiv a year ava a aay`. Let us consider
the arious elements o this deinition.

A rea.ovabte creatvre` signiies a human being. as opposed to an animal.

v beivg` signiies that there can be no murder o an unborn person. In the eve o the law a child is not
born` until its bodv is ullv extruded rom that o its mother: and it will onlv then be born` i it has
acquired an existence independent o its mother. Until these conditions are satisied there can be no
murder` o the child. Accordinglv it will not be murder to prerevt it rom being born alie. Neertheless.
the Inant Lie Preseration, Act 1929 makes it an oence cbita ae.trvctiov`,. punishable with
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imprisonment or lie. wilullv to cause the death o a child which is capable o being born aliewhich it
is presumed to be ater 28 weeks o pregnancvbeore it has acquired an existence independent o its
mother. lor a person to be conicted o this oence it must. howeer. be shown that the act which
caused the death was not done in good aith or the purpose o presering the lie o the mother. And
procuration o abortiov is o course also a crime under the Oences against the Person Act 1861. s 58. It is
committed i a pregnant woman. bv anv means. does anvthing with intent to procure her own miscarriage.
or i anv other person does anvthingwhether or not she be pregnantwith intent to procure a
miscarriage. 1hough. bv the Abortion Act 196 it will be no crime i. under certain conditions. pregnancv
is terminated bv a registered medical practitioner: proided that two such practitioners are o the opinion
that the continuance o the pregnancv would endanger the mother`s lie or health. or that o her child. or
that the child to be aborted would. i born. be seriouslv handicapped. A second opinion is not necessarv in
the case o emergencv where immediate action is essential to sae the lie o. or to preent grae injurv to.
the mother. As is well-known. this Act has led to manv abuses. It should be added that one cannot murder
a aeaa person. 1his mav seem obious but the diicultv is to determine the moment o death: probablv the
better iew is that lie ceases when. but not until. the brain ceases to unction.

|vaer tbe tOveev`.) peace` now signiies simplv that it is not murder to kill an enemv in war. But it should be
noted that. as an exception to the general rule that criminal jurisdiction is conined to crimes committed in
this countrv. murder or manslaughter committed bv a British subject anvwhere is triable here.

Matice atoretbovgbt` is important because it is the element o intent required to establish murder. It mav
consist o an intent to kill. whether particular or general: or instance X intends to shoot A and does so. or
he intends to shoot A and in act shoots B. or he places a bomb in an aeroplane intending to blow it up in
light with no particular malice against anvone in it. but with a general intent to kill. It mav consist o an
intent to cause grieous bodilv harm. i.e. reallv serious bodilv harm. But such an intent it must be. no less:
urthermore the test o intent is .vbiectire i.e.. not what the state o mind o the accused appeared to be. but
what was it` In extreme circumstances. where death or reallv serious bodilv harm is a natural and
probable consequence o the deendant`s act. the jurv mav be permitted to ivter that. i he oresaw the
consequence. he intended it.

Malice aorethought` is an archaic term and it is misleading. No ill-will need be inoledas in cases o
euthanasianor need the act be preveaitatea: intention is all that is required.

)be aeatb tottorivg ritbiv a year ava a aay`. 1he mediaeal law wiselv prescribed that there could be no
prosecution or homicide unless the death ollowed within a ull vear o the act alleged to hae caused it.
Beore the deelopment o modern medical science it would hae been impossible to be certain. ater a
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greater lapse o time. that the act was the real cause o death. 1his rule has now been abolished bv the Law
Reorm \ear and a Dav Rule, Act 1996.

lormerlv the penaltv or murder used to be death bv hanging. but the Murder Abolition o Death Penaltv,
Act 1965 has now substituted lie imprisonment or death. At the time o sentencing the court mav
declare a minimum period which in its iew should elapse beore the Secretarv o State orders release on
licence.

People below the age o 18 vears at the time o committing a murder cannot be sentenced to lie
imprisonment. but thev must instead be sentenced to be detained during ler Majestv`s pleasure.

Manslaughter
Manslaughter is the oence o unlawullv causing the death o another. without malice aorethought.

1here are two categories o manslaughter: oluntarv` manslaughter and inoluntarv` manslaughter.
1otvvtary vav.tavgbter is committed when a person causes the death o another in circumstances which
would hae amounted to murder had the act not been done under proocation or in pursuance o a
suicide pact. |.|. vrotvvtary vav.tavgbter mav be committed in three wavs. lirst. bv causing death in the
commission o an unlawul and dangerous act. Secondlv. bv gross negligence. 1hirdlv. with subjectie
recklessness as to the risk o death or bodilv harm.

a, Voluntarv manslaughter In a trial or murder it is or the jurv to consider whether there is such
eidence o prorocatiov either bv the ictim himsel or bv some other person as to justiv a coniction or
manslaughter. And where there is eidence upon which the jurv could reasonablv so ind. the judge must
draw their attention to it in his summing up: whether or not the issue o proocation has been raised bv
the deence. As to the degree o proocation required. the lomicide Act 195. s 3. proides that \here
on a charge o murder there is eidence on which the jurv can ind that the person was prooked whether
bv things done or bv things said or both together, to lose his sel-control. the question whether the
proocation was enough to induce a rea.ovabte vav to do what he did shall be let to the jurv: and in
determining that question the ivry shall ta/e ivto accovvt ererytbivg both done and said according to the eect
which. in their opinion. it would hae on a rea.ovabte vav`. 1he deendant is thus to be treated as a
reasonable man` placed in the releant circumstances. 1he reasonable man will not. o course. be oer-
irritable. quick to wrath. or undulv pugnacious but such things as his age or his colour mav reasonablv
aect his reactions: the voung cannot be expected to hae the same degree o sel-control as their elders:
and to sav vou damn nr` to a white man would not prooke him. but it might reasonablv prooke a
black one.

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But it must be stressed that what is reasonable` is here solelv a question o act to be decided bv the jurv
in relation to the actual circumstances o the case. 1hus een a blackmailer who must expect and accept a
degree o proocation rom his ictimsuch as. \ou b blackmailing b `mav vet relv upon
proocation i the ictim makes a serious phvsical attack upon him. Proocation mav be successullv
pleaded een though the accused did though prooked, orm an actual intent to kill.

1he lomicide Act 195. s 4 as amended bv the Suicide Act 1961, enacts that it shall be vav.tavgbter. and
shall not be murder. or a person acting in pvr.vavce ot a .viciae pact between him and another to kill the
other or be a partv to the other being killed bv a third person`. |.| 1he case assumed is o course where
the accused has carried out the pact in respect o the other partv or parties. or connied at its being carried
out. but has ailed to implement it in respect o himsel. It will be noted that in order or the accused to
escape the charge o vvraer he must hae been acting in pursuance o` the pact: and the section proides
that or this to be the case he must himsel hae had a settled intention o dving` at the time o the killing.
A suicide pact is not thereore a painless wav o committing a murder and escaping with a coniction or
manslaughter bv changing one`s mind in respect o one`s own uture as soon as the pact is concluded. 1he
section also proides that where the acts o a case do all within its ambit a coniction or manslaughter
mav be entered. though the accused has been initiallv charged with murder.

It remains to be added that where. upon a charge o murder. a plea o sel-deence |.| ails because. or
instance. undue orce has been used bv the accused. it does not necessarilv ollow that there must be a
erdict o manslaughter. 1he position is that. sel-deence haing ailed to exonerate. other issues mav
ariseor example whether there was proocation or whether. indeed. an intent to murder was in act
present.

b, Inoluntarv manslaughter Broadlv speaking. this mav be taken to include the case where proocation
reduces murder to manslaughter |.| and the case o murder reduced to manslaughter bv diminished
responsibilitv |.|. But here our other orms o manslaughter must be mentioned. namelv. killing as the
result o dangerous acts. killing bv gross negligence. killing with subjectie recklessness and killing during
intoxication.

i, Kittivg a. tbe re.vtt ot av vvtartvt ava aavgerov. act. It will be recalled that the malice aorethought o murder
requires either an intent to kill or an intent to do grieous bodilv harm. 1here can be no murder without
the one or the other o those two orms o intent. But causing death mav. neertheless. be culpable i
there is some less speciic intent: and it is manslaughter to kill as the result o the intentional doing o
some act. such as throwing bricks rom a bridge oer the motorwav. which is both vvtartvt and aavgerov..
lere it is to be noted that what is intended is the unlawul act o throwing the brick,. not the death o
the motorist below,. lence this kind o manslaughter is oten called constructie` because the intent to
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kill which. e bypotbe.i. does not exist. is notionallv inerred rom the intent to do the unlawul and
dangerous act. It ollows rom this that here the rule o s 8 o the (riminal Justice Act 196 |.| does not
applv. and the deendant is judged as regards his state o mind not bv his actual intention because he had
no intention to kill, but bv the standard o what a reasonable person would consider dangerous. It is thus
irreleant or the brick thrower to proe that be did not appreciate the danger o his act. On the other
hand. it would be releant to proe that he was so unintelligent that he was unable to orm the intent to
throw a brick at all. It should be added that the act vv.t be dangerous: hence i a drug addict supplies
another addict with a dangerous drugdangerous onlv i improperlv usedthe supplier o the drug will
not commit manslaughter i the other man`s death is caused bv excessie use o the drug. lurther.
proided that the dangerous act was intentional it need not be aimed directlv at the ictim. 1hus it has
been held that where. in the course o a ight. B knocks down A. who in turn knocks down ( in alling.
and ( dies as a result. B mav be guiltv o manslaughter.

ii, Cro.. vegtigevce. A killing brought about bv gross negligence has been conirmed in the case o .aova/o
|1994| 3 All LR 9 bv the louse o Lords as a categorv o inoluntarv manslaughter. lor this to applv.
there must be conduct bv the accused inoling risk o death and the conduct must hae allen so ar
below the standard to be expected o a reasonable person.

iii, Kittivg by a rec/te.. act or ovi..iov. Such killing will amount to manslaughter where the conduct o the
deendant was such as to create an obious and serious risk o unlawul phvsical injurv to another. and
eitber he has not gien anv thought to the possibilitv o there being anv such risk or. haing recognized that
there was some risk inoled. has none the less gone on to take it. \here such responsibilitv is based
upon an omission to act. rather than upon a positie act. it will onlv be manslaughter i the deendant was
under a dutv to act imposed bv the criminal law.

i, Mav.tavgbter iv retatiov to ivtoicatiov. It has been noted aboe that the act that a person is intoxicated
bv drink or drugs is not. i his state is sel-induced. a justiication or causing the death o another. lence
where a man is so intoxicated that he is unaware o doing the act which causes the death he mav be
charged with vav.tavgbter: though coniction or vvraer is out o the question. or there is no malice
aorethought. |.|

Aiding and Abetting Suicide
Since the passing o the Suicide Act 1961 suicide o itsel is no longer a crime: but the Act made it an
oence punishable with a maximum o ourteen vears` imprisonment to aid. abet. counsel or procure the
suicide. or attempted suicide. o another. lor the oence to be committed there must be actual aiding and
abetting. lence where a philanthropical societv issued a booklet designed to encourage euthanasia bv
describing the most eectie wavs o committing suicide it was held that the societv would onlv be
contraening the law i the booklet were issued to people known bv the distributor to be contemplating
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suicide. It would not be an oence to distribute it to ordinarv people not known to be doing so. \here
the acts warrant it. a person charged with murder or manslaughter mav be conicted o this oence. 1he
consent o the Director o Public Prosecutions is necessarv or prosecution under this Act.

Infanticide
1his is a statutorv crime. It is now goerned bv the Inanticide Act 1938. which proides that where a
woman wilullv causes the death o her child. being vvaer tbe age ot ]2 vovtb.. in circumstances which
amount to murder. she will not be guiltv o murder. Instead. she will be guiltv o ivtavticiae`. i. at the time
she did the act causing death. the balance o her mind was disturbed bv reason either o her not haing
recoered rom the eects o the birth. or bv reason o the eect o lactation consequent upon the birth.
Inanticide is punishable in the same manner as manslaughter.

Causation
Although the problem is uniersal and it arises in tort |.| as well as in the criminal law. brie mention
must be made o its bearing on homicide cases. I a person is to be ound guiltv it must be established that
his act or omission cav.ea the death: i the cause lav in some other extraneous actor he cannot be held
responsible. 1hus in R r oraav 1956, 40 (r App Rep 152 it was held that where the accused stabbed a
person who was later subjected to treatment which was both abnormal and dangerous the death was
caused bv the maltreatment rather than bv the initial stab: so the accused escaped responsibilitv. But the
situation was dierent in R r Matcbere/ |1981| 2 All LR 422. 1here the accused also stabbed the ictim and
she was also taken to hospital: ater normal treatment she had to be put on a lie support machine and the
machine was disconnected because the case had become hopeless. It was held that the cause o her death
was the deendant`s act rather than the act that the machine was disconnected. 1he question to be posed
is does the interening act constitute an independent cause in itsel I it does the act o the accused ceases
to be operatie: i it does not it remains operatie.

It should be added that where death occurs rom a number o causes. all equallv operatie and attributable
to the deendant as where a man pushed a woman headirst down a staircase. then dragged her up with a
rope round her neck. then cut her throat, the prosecution does not hae to single out anv one o them as
being tbe operatie cause.

5.2.2.2 Assault and Battery
1he word assault` is commonlv used to signiv the two oences o assault` and batterv`. which are
normallv committed together. An assault mav. howeer. be made without a batterv and ice ersa.

A common` assault consists in attempting. or oering. to applv phvsical orce to another person in such a
wav as to cause reasonable ear in the mind o the person that the wrong will be committed. A batterv
consists in the actual application o orce to the person o another.
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(ommon illustrations o assault without batterv are the act o shaking a stick at a person who is close
enough to be hit. or o pointing a gun at him: according to the better iew this latter act will constitute an
assault een i the gun is not loaded. proriaea that the person threatened does not know that it is not: i he
does. o course. there is no assault because he does not reasonablv apprehend the inliction o a batterv.
Proided that it is hostile or unwanted anv degree o orce suices or the commission o a batterv.
howeer triial. een a mere touch.

Mere accidental contacts which ineitablv occur in the course o eervdav lie. such as unintentional
jostling in a crowd. are not assaults. Moreoer. where there is consent there can normallv be no assault or
batterv: hence. proided that the dentist acts with proper care. his patient cannot sue him or batterv.
lurther. it has been ruled that it is in the public interest that injuries caused in the proper conduct o
lawul sports such as ootball, shall notin the absence o intention or negligencebe actionable. But.
on the other hand. it has also been ruled that where people engage in a ight intending to cause bodilv
harm to each other there is no such immunitv: and een though the injured partv mav hae expresslv or
impliedlv consented to injurv. the other partv mav be prosecuted. As in homicide so. a tortiori. in the case
o assault. sel-deence mav justiv. In order to obtain a coniction or an assault it is not essential to
establish that the deendant actuallv intended it i he behaed recklesslv.

\hen a person has been summarilv conicted o assault or batterv no ciil proceedings in respect o
eitheror thev are both ciil wrongs as well as crimesmav be brought subsequentlv. (ommon assault
is a summarv oence and it is punishable bv a ine. a maximum o six months` imprisonment. or both.

Besides common` assault there are arious orms o aggraated assaults and certain other kindred
oences prescribed bv the Oences Against the Person Act 1861. All o these carrv a higher maximum
penaltv than common assault. 1hev include such things as unlawul and malicious wounding. and the
inliction o grieous bodilv harm.

1he law relating to manv sexual oences. including assaults. was consolidated in the Sexual Oences Act
1956. And it should be added that the Sexual Oences Act 196. legalized homosexual practices among
consenting males oer 21 in priatethough seamen sering on merchant ships o the United Kingdom
are excluded rom the beneit o this parliamentarv indulgence.

5.2.2.3 Rape
Bv s 1 o the Sexual Oences Act 1956 as amended bv the Sexual Oences Amendment, Act 196 and
as substituted bv the (riminal Justice and Public Order Act 1994,. a man commits rape i: a, he has sexual
intercourse with a per.ov who at the time o the intercourse does vot cov.evt to it: and b, at the tive be /vor.
tbat rictiv aoe. vot cov.evt to it. or he is reckless as to whether he or she consents or not. Section 12, declares
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that the presence or absence o reasonable grounds` or the deendant`s belie is to be taken into account
in considering whether he so belieed`: so that Morgav`. Ca.e |.| seems to be conirmed. at least to the
extent that it is the deendant`s actvat belie that matters.

Because ree consent negaties the oence there can be no rape where there is consent: and ormerlv it
was held that a husband could not thereore normallv be guiltv o raping his wie. because. as Sir Matthew
lale put it. bv their mutual matrimonial consent and contract the wie hath gien up hersel in this kind
unto her husband. which she cannot retract`. \here. howeer. a husband and wie were liing apart under
judicial separation or a separation order. this logic ceased to applv and the husband might then be guiltv o
rape: so likewise ater decree vi.i though beore decree absolute or diorce. Since a louse o Lords
decision in 1991. it has been the case that a husband could be conicted o raping his wie i she did not
consent. whether or not thev were liing together. separated or diorced.

1he consent` must. o course. be a real consent. 1hus. consent induced bv raud as where a man induces
a married woman to hae intercourse with him bv impersonating her husband, will not orm a deence:
and it will also amount to rape i a man has intercourse with a woman while she is unconscious. or then
she is incapable o giing or o withholding her consent.

Rape carries a maximum penaltv o imprisonment or lie.

5.2.2.4. Bigamy
Bigamv is a statutorv oence: goerned bv the Oences Against the Person Act 1861. s 5. It is
committed bv anvone who. being married. marries` anv other person during the lie o his or her husband
or wie.

1he irst essential is that the deendant must be varriea to a liing person at the time o the marriage`
which constitutes the oence. Married` means lawullv married and. or this purpose. monogamouslv
married: a polvgamous marriage will not suice to support the charge. lence. i the irst marriage was null.
as or example where it was a marriage within the prohibited degrees` a second marriage will not be
bigamous. 1his rule will not. howeer. applv in the case o a merelv roiaabte` marriage. e.g. a marriage
which is liable to be set aside on the grounds o impotence. No second marriage can lawullv be
contracted until a decree ab.otvte has been obtained annulling the irst.

1he statute urther proides that a second marriage will not be bigamous i. at the time it is contracted. a
preious marriage or marriages hae been dissoled bv a competent court. Moreoer. since it has been
possible. where a husband or wie has reason to beliee that his or her spouse is dead. or him or her to
obtain a judicial decree o presumption o death` and dissolution o marriage. the eect o this decree will
be to dissole the marriage and enable the person concerned to contract a second marriage lawullv.
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1he second essential o the oence is that the deendant shall revarry`. 1he essence o bigamv lies in the
proanation o the marriage ceremonv. lence. as regards the .ecova marriage`. proided that a legallv
recognized ceremonv has been conducted. either according to our law. or. i the marriage` is contracted
abroad. according to some oreign law which we recognize. the oence will be committed een though
the second marriage` is in other respects a nullitv: e.g. because the parties to tbi. marriage` were within the
prohibited degrees`.

Bv the proiso to the Oences Against the Person Act 1861. s 5. it is a deence to a charge o bigamv to
show that the irst husband or wie has been continuallv absent or a minimum period o seen vears. and
has not been known bv the accused to hae been alie during that period. O course. i under these
circumstances. and without haing obtained a decree o presumption o death. the accused does remarrv`.
although he or she cannot be charged with bigamv. the second marriage` will be a nullitv i the other
spouse reappears.

Apart rom the Act. it is also a deence or the deendant to show that he or she had reasonable grounds
or supposing that his or her spouse was aeaa at the time when the second marriage was contracted. 1hus.
in R r )ot.ov 1889, 23 OBD 168. where Mrs. 1 was deserted bv her husband in 1881. and she heard rom
reliable sources that he had drowned. it was held that her remarriage in Januarv 188 was not bigamous.
though the husband reappeared in the December o that vear. lurther. bv paritv o reasoning. it is also a
deence to proe that the accused honestlv belieed on reasonable grounds that the preious marriage was
annulled or dissoled. een though in act it was not. 1his decision was let undisturbed bv the decision in
Morgav`. Ca.e |.|: as well it might be. A person who marries` another knowing that he or she is alreadv
married will be guiltv o bigamv as principal in the second degree. proided that the act o the other partv
is itsel bigamous. O course this act might be apparentlv bigamous. but not reallv so: or example. the
man who married` Mrs. 1 could not hae been guiltv as principal in the second degree. een i he had
known that the husband was alie. or Mrs. 1. the principal. was hersel not guiltv.

Bigamv is punishable with a maximum o seen vears` imprisonment.

5.2.3 Offences in Relation to Property
1he most important oences o this kind are oences connected with thet and with criminal damage to
propertv.

5.2.3.J 1heft and Allied Offences
1he law concerning thet. ormerlv contained largelv in the Larcenv Act 1916. was reashioned bv the
1het Act 1968 hereater 1A`,. 1here is space here to consider the ollowing oences onlvi, 1het: ii,
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Robberv: iii, Burglarv: i, Obtaining bv Deception: , Blackmail: i, landling Stolen Goods. And it
will also be necessarv to mention ii, the law relating to restitution o stolen propertv.

1heft
1he old law o larcenv stealing,a word which is now no longer usedwas bedeilled bv the act that
though it had been or the most part codiied in a number o Larcenv Acts it ultimatelv sprang rom the
common law which. in ormer times. was or a arietv o reasons obsessed bv the need to protect po..e..iov.
1hus larcenv was deined bv reerence to the obserable act o taking and carrving awav` the stolen
goods. rather than bv reerence to the dishonestv o the thie`s conduct.

1his approach to the matter. necessarv though it originallv was in a looselv organized societv where
breaches o the peace arising rom criminous taking were much to be eared. proed in the course o time
to be undulv circumscribed. or it meant that the law o thet did not embrace manv tvpes o dishonest
dealing with propertv which did not inole a taking out o the owner`s possession. 1hus a patchwork o
statute law had to be superimposed upon the law o simple larcenv thet, creating special oences o
dishonest dealing with propertv which were not within the technical conines o larcenv. lor instance
embezzlement` was not larcenv. but was a special oence: this was necessarv because it was committed
where a clerk or serant appropriated propertv receied by biv on behal o his master. and this meant that
the appropriation he haing himsel the possession o the propertv until he gae it to the master, was not
an attack upon the va.ter`. possession. Manv other instances o the patchwork qualitv o the ormer law
could be gien.

lence the 1A started rom the standpoint o widening the deinition o stealing and ocusing rather upon
the dishonestv o the thie than upon the element o disturbance o possession. Section 11, o that Act
thereore proides that A person is guiltv o thet i he ai.bove.tty appropriate. property betovgivg to avotber ritb
tbe ivtevtiov ot pervavevtty aepririvg tbe otber ot it .` All the italicized words are signiicant.

Dishonestv` is not deined because the intention is that all orms o dishonestv` shall be embraced in the
sense o the word amiliar to the lavman: thus. or instance. where someone takes monev rom another
person and asserts that he intended to return it. it will be or the jurv to decide whether in the
circumstances his behaiour was dishonest`. 1hough i he oerdraws his giro account which is not
permitted,. knowing that there will be no unds to meet his cheque. such behaiour is clearlv dishonest`.
On the other hand it has been ruled that where the accused gies eidence o his own state o mind the
jurv mav gie some weight to what he savs in reaching their own conclusion. Moreoer. the test is
subjectie to the extent that there can onlv be a coniction i the accused. though protesting his honestv.
knew that ordinarv people would regard what he did as dishonest. (ertain kinds o appropriation are.
howeer. speciicallv excluded bv the deinition: a, appropriation bv a person in the belie that be ba. iv
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tar tbe rigbt to deprie the other o it` 1A. s 21,a,,e.g. the case o the taker who honestlv beliees that
the umbrella is his own: b, appropriation bv a person in the belie that he would hae the owner`s,
cov.evt i the owner, knew o the appropriation` 1A. s 21,b,,e.g. Jones tells Smith that he mav take
and keep his Jones`, bicvcle at anv time. Jones being absent Smith takes it: Jones had in act. howeer.
changed his mind: c, appropriation where a person appropriates propertv in the belie that the person to
whom the propertv belongs cannot be discoered bv taking reasonable steps`e.g. where A inds a jewel
in the street and it does not appear that reasonable steps. such as inorming the police. are likelv to
disclose an owner. Needless to sav. it is dishonest` to take propertv rom the owner knowing that his
consent is onlv apparent. 1hus in arrevce r Metropotitav Potice Covr |192| A( 626 the louse o Lords
upheld the coniction o a taxi drier who accepted the wallet proered bv a oreign tourist and extracted
rom it an extortionate are`. It was also pointed out that the accused could equallv hae been charged
under s 151,.

.ppropriate.`. 1his is deined 1A. s 31,, thus`.vy a..vvptiov by a per.ov ot tbe rigbt. ot av orver avovvt. to
av appropriatiov. and this includes. where he has come bv the propertv innocentlv or not, without stealing
it. anv later assumption o a right to it bv keeping or dealing with it as owner.` 1his disposes o one o the
deects o the ormer law Larcenv Act. 1916. s 111,, bv which the intent to steal had to exist at the time
o taking: so i X`s sheep were intermingled with \`s and \ droe the lock awav in the belie that it was
entirelv his own. but later upon discoering his mistake. appropriated X`s sheep. there was doubt under
the old law whether \ was guiltv o larcenv: but now he certainlv will in such a case be guiltv o thet. It
should. perhaps. be noted that the restrictie nature o the old law. which was to some extent codiied
common law. was partiallv due to the act that stealing. unless triial. being originallv a capital oence. the
courts did all thev could to restrict its scope., 1he 1het Act 1968. s 32,. howeer. contains a special
saeguard or the case o a person who. haing acquired an interest in propertv or alue and in good aith
later discoers that there was a deect in the titlee.g. a man buvs a book and aterwards learns that the
seller was not the owner o it but had borrowed it. Under this sub-section such a person will not be a tbiet
i he retains the propertv though he mav be open to a ciil claim at the suit o the owner,. \hether this
accords with common moralitv is perhaps questionable. but it must be stressed that apart rom this special
exemption the new law is much wider than the old. which was concerned primarilv with the act o taking
and carrving awav`: or the 1A. s 31, orbids avy assumption bv a person ot tbe rigbt. ot av orver`. And it
has been held that there is such an assumption where a person. at a supermarket. switches price labels in
order to obtain the goods at a lower price than the price intended.

Propertv`. Bv the 1A. s 41,. this includes vovey ava att otber property. reat or per.ovat. ivctvaivg tbivg. iv actiov
ava otber ivtavgibte property`. 1he meaning o things in action` will be explained below: real` propertv is land.
Section 42, proides that land cavvot be .totev except i, where a part o it is .ererea and appropriated bv a
person not in possession o ite.g. X takes a load o soil rom \`s land: ii, where a tenant appropriates a
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ixture`: iii, where someone in the position o a trustee or the like. being authorized to dispose o the
land on behal o another person appropriates it in breach o conidence. Again. in law egetable matter
growing on land is regarded as a part o the land technicallv it is land` not goods`, and it thereore
receies the same treatment as land under s 42,: i.e. under i, aboe. it is stolen when wilullv seered bv
someone who does not possess it. But the 1A. s 43,. makes some common sense exceptions to this rule:
thus the picking o rita vv.broov. and the ttorer.. trvit and totiage o rita ptavt.. tree. and .brvb. is not thet
vvte.. aove tor covverciat pvrpo.e.: but the vprootivg o such things. as opposed to the mere picking o them is.
|lurther. bv the \ildlie and (ountrvside Act 1981. s 13. quite apart rom anv question o thet it is an
oence s 131,a,, intentionallv to pick. uproot or destrov certain wild plants listed in Schedule 8 o the
Act. And also s 131,a,, it is an oence intentionallv to uproot anv wild plant without the authorization
o the owner o the land on which it growseen. it would appear. a dandelion.| 1he appropriation o
untamed wild creatures e.g. wild rabbits, not ordinarilv kept in captiitv is also excepted 1A. s 44,,
proided that thev are not in possession o another person and that he is not in the course o reducing
them into possession. lor example. vou appropriate a grouse which I hae shot but not as vet retrieed.
\hat amounts to being in the course o reducing into possession` has gien rise to actual disputes in
other contexts rom Roman times to ours e.g. claims bv rial hunters or whalers, and it will doubtless
continue to do so.

Belonging to another`. 1his includes the case o a person who has possession or control o the propertv
such as a bailee with whom propertv has been deposited, on behal o another. as well as the case o the
person who has a proprietarv interest in it as owner or otherwise 1A. s 51,,: and a co-owner or partner
who appropriates the co-owned or partnership propertv is also a thie: or he takes what belongs to
another`. It also embraces the case where the owner has entrusted the propertv to the thie to deal with in
a particular wav: as where a club member gies propertv to the treasurer to be used or speciied purposes
and it is used or some other purpose 1A. s 53,,: ormerlv appropriation o this sort would not hae
been thet but raudulent conersion`. It also includes the case o a person whose propertv comes into the
hands o the thie bv mistake. the latter being under an obligation to restore it or its alue.

!itb tbe ivtevtiov ot pervavevtty aepririvg` the other o it. Intending pervavevtty to aeprire` is in most
circumstances essential: and it ollows that a mere conditional intent is not enough-as where. or
example. a person picks up a handbag and. haing examined the contents. decides that thev are not worth
taking and leaes the bag where it was.

In general our law knows no such crime as the Roman tvrtvv v.v.` the thet o the use o a thing,. 1here
are. howeer. important exceptions to this proposition. lirst. the 1A. s 12. makes it an arrestable oence.
ritbovt cov.evt. to ta/e anvone else`s conevance. or to drie it or drie in it /vorivg tbat it ba. beev ta/ev
ritbovt avtbority: though the taking or riding o a pedal cvcle in similar circumstances is onlv a summarv
oence. It has been held that taking` implies moement. not just possession. 1hus i I get into vour car
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and simplv sit in the drier`s seat I cannot be guiltv o the oence and it seems that this is so een i I
turn on the ignition, but once I get the car moing. een bv taking o the handbrake on a downward
slope. bv eer so little. I am guiltv. It must be noted that in general the consent` will be alid or the
purposes o this section een though it be obtained bv some degree o misrepresentation: eg that the taker
wants the car to drie to a nearbv destination when he reallv intends to take it to a distant one: though it is
possible that a misrepresentation o a more undamental nature might be held to inalidate the consent.
Second bv the 1A. s 11. anv person who. without authoritv and without belieing that he has authoritv.
remoes anv article such as a picture, kept or displav to the public in anv building or in the grounds o
anv building commits an oence. And the 1A. s 6. also contains urther qualiications. lirst it proides
that een though no such intention exists. an intent on the part o the thie to treat the thing as his own
regardless o the owner`s, rights` will amount to an intention permanentlv to deprie`: thus an
unauthorized borrowing or a lending o it bv the thie mav be stealing i. though onlv i. the period and
the circumstances are such as to make the act equialent to an outright appropriatione.g. X retains a
librarv book or such an indeinite period that the retention amounts to treating it as his own. Second.
where a person haing control o propertv parts with it under a condition as to its return which he mav
not be able to perormand does this or purposes o his own and without the owner`s authoritvthe
act o parting mav be held to constitute treating the propertv as his own regardless o the owner`s, rights`.
1hus i B. without A`s permission. pledges A`s watch with (. a pawnbroker. without anv serious
probabilitv that he B, will be able to redeem the pledge he mav be guiltv o thet. 1he maximum penaltv
or thet is seen vears` imprisonment.

Robbery
Bv the 1A. s 8. a person will be guiltv o robberv i he .teat.. and immediatelv beore or at the time o
doing so. and in order to do so. he v.e. torce ov avy per.ov or .ee/. to pvt avy per.ov iv tear ot beivg tbev ava tbere
.vbiectea to torce`. Lervone knows that the man who points a pistol at the bank cashier and takes the monev
rom the till is a robber: but it should be noted that the same applies to the gunman who. while using no
orce against the cashier. points his weapon at the securitv guard. 1he reader is reminded thatcontrarv
to common usageI hae been robbed!` meaning Mv wallet has disappeared`robberv and thet are
dierent things: or robberv is riotevt thet.

1he maximum penaltv or this crime or or an assault with intent to rob e.g. the gunman who holds up
the cashier but is rustrated in his intent to steal bv the emptiness o the till, is lie imprisonment.

Burglary
Bv the 1A. s 9. a person will be guiltv o burglarv i a, he evter. avy bvitaivg or part ot a bvitaivg a. a tre.pa..er
ava ritb ivtevt to steal anvthing in the building or o inlicting therein grieous boaity barv or o raping anv
person therein or doing vvtartvt aavage to tbe bvitaivg. or b, barivg entered anv building or part ot a bvitaivg a.
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a tre.pa..er. he .teat. or attevpt. to steal anvthing therein or inlicts or attempts to inlict grierov. boaity barv on
anv person therein.

It will be noted that a, inoles arious kinds o intent at tbe tive o the trespassorv entrv and that b,
inoles covvi..iov o speciied crimes atter entrv in the absence o intent at the time o entrv. 1respass` is
o itsel a tort: not a crime. 1he trespasser or the purposes o the crime. must be a trespasser at tbe vovevt
ot evtry. so that he cannot be guiltv o the oence i he is inited to enter bv the owner or some authorized
person who subsequentlv changes his mind and tells him to go: but. on the other hand where a person has
general permission to enter. but. at the time o the releant entrv. knows that he is exceeding the limits o
that permission e.g. bv entering with intent to steal, he commits burglarv. It has been ruled that it is not
essential to the oence that the trespasser entering with intent to steal should intend to steal anv particular
thing: it is enough i he has a general intent to steal. een though there is nothing in the building or part
thereo to be stolen.

In the public mind burglarv is probablv solelv connected with .teativg in a building though sometimes one
mav also hear Mv watch has been burgled in the street`: to which our readers must o course retort. 1hat
is impossible`,: but it will be realized that it mav also be connected with the other oences such.
inconsequentlv. as rape,. Bv 1A. s 93,. building` in this context includes an inhabited ehicle or essel`
and the oence mav be committed at times when the person haing a habitation in it is not there .`

Section 9 has simpliied the law. lormerlv there was a distinction between burglarv a nocturnal oence,
and housebreaking` a davtime oence, and the details o these and other similar. but separate. oences
were complex in the extreme.

1he maximum penaltv or burglarv in a dwelling is 14 vears imprisonment. otherwise it is ten vears
(riminal Justice Act 1991 s 26,: but the 1A. s 10. also proides or the case o aggraratea` burglarv which
will be committed i the burglar has with him anv irearm. imitation irearm. weapon o oence anv
article calculated to cause injurv or incapacitv, or explosie. 1he maximum penaltv or the aggraated
oence is lie imprisonment.

Deception
1here are two oences o obtaining propertv bv deception: the one under the 1A. s 15. the other under
the 1A. s 16. (ertain allied oences were also created bv s 16 but thev proed to be unsatisactorv: thev
were consequentlv redeined bv the 1het Act 198 which. pro tavto. replaces the original s 16. \e will irst
discuss s 15. which deines deception` and creates an oence. and then consider the s 16 oences and.
inallv. the allied oences under the 1het Act 198.

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a, 1he 1A. s 15 deines deception` s 154,, asavy aeceptiov trbetber aetiberate or rec/te..).a. to tact or tar.
ivctvaivg a aeceptiov a. to tbe pre.evt ivtevtiov. ot tbe per.ov v.ivg tbe aeceptiov`.

1he essential nature o deception` under the Act was explained bv Lord Diplock in DPP r tovebov.e |19|
A( 55 a case in which the deendant took out insurance policies in aour o his wie and then aked his
own death,: 1he phvsical acts`. he said. o the accused that are an essential element o anv oence under
s 15 must amount to a deception`. i.e. the making to the person rom whom the propertv is obtained a
repre.evtatiov o act. law or intention that is tat.e. 1he essential state o mind o the accused at tbe tive ot
aoivg those phvsical acts is his /vorteage ot tbe tat.ity o the representation or his indierence as to whether it
is true or alse. and his intentions 1, that the alse representation should be covvvvicatea to the person
rom whom the propertv is to be obtained: 2, that such person should betiere tbe repre.evtatiov to be trve: 3,
that this belie should ivavce tbat per.ov to part with ownership. possession or control o property to tbe accv.ea
biv.ett or to .ove otber per.ov. and 4, that the accused himsel or that other person should assume the rights
o orver ot tbe property so obtained.`

1he alse representation mav be erbal. written or bv means o imposture: and it mav be express or
implied. It need not necessarilv be made to the person who is disadantaged: thus where B. knowing that
her bank would dishonour her cheque. paid a ull rail are bv cheque upon presentation to the boo/ivg cter/
o her cheque card which obliged tbe bav/ to pav the railwav authoritv, she was guiltv o deception:
though it was the authoritv through the clerk, rather than the bank who had been deceied. It should also
be stressed that the representation mav be implied: thus where a person orders a meal at a restaurant he
impliedlv represents that he will pav or it. and i he does not he will be guiltv o deception under s 16. as
amended,: moreoer. the person who intends to pav or the meal at the time o ordering. but changes his
mind as sometimes. bv reason o the poor qualitv o the ood and serice een a reasonable citizen
certainlv might!, and. haing consumed the meal. quits the restaurant. also commits deception because.
unless the contrarv is indicated. the representation continues to be implied until the moment o leaing.

1he irst oence s 151,, is committed where a per.ov by avy aeceptiov trbetber aetiberate or rec/te..) ai.bove.tty
obtaiv. property betovgivg to avotber ritb tbe ivtevtiov ot pervavevtty aepririvg tbe otber ot it`: and s 152,, a per.ov i.
to be treatea a. obtaivivg property it be obtaiv. orver.bip. po..e..iov or covtrot ot it`. It has been held that a person
who purchases goods with a credit card when he has exceeded his credit limit is guiltv o deception
because. in tendering the card. he alselv represents that the card companv will honour the pavment. It will
be appreciated that acts which constitute this oence mav oten also support a charge o tbett under s 11,.
But sometimes the s 151, oence mav be easier to proe than thet. lor instance. suppose B borrows A`s
horse intending to appropriate it: the mere act o B`s acquiring control o the horse under the alse
pretence o borrowing it will suice to establish the s 151, oence. whereas an appropriation` in the
sense described aboe e.g. behaing in such a wav as to pose a challenge to A`s title, will be necessarv
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beore tbett can be proed. Section 15 is the more serious o the two crimes. and it is punishable with a
maximum oten vears` imprisonment. It replaced the ormer crime o obtaining bv alse pretences`.

b, 1he second oence is committed 1A. s 161,, bv anv person who bv deception dishonestlv obtains
or himsel or another anv pecvviary aaravtage`: and. s 162,,. the cases in which a pecuniarv
adantage`.is to be regarded as obtained.are where.b, anv person, is allowed to borrow bv wav o
oerdrat. or to take out anv policv o insurance or annuitv.or c, anv person, is gien the opportunitv
to earn remuneration or to win monev bv betting`.

c, 1he oences under the 1het Act 198 are: i, ai.bove.tty obtaivivg .errice. bv deception s 1,. i.e. serices
rendered upon the expectation o pavment: ii, era.iov ot tiabitity bv deception. comprising s 2,: a,
dishonestlv securing the remission o anv legallv enorceable liabilitv. e.g. a debt: b, with intent to make
permanent deault dishonestlv inducing a creditor to wait or or orego a pavment. 1hus. or example. it
has been held that where a man told a waiter in a restaurant that he had paid another waiter or his meal
when he had not, he had induced the waiter to orego` a pavment: c, dishonestlv obtaining exemption
rom liabilitv to make a pavment: iii, va/ivg ott ritbovt payvevt s 3, which is committed bv anv person
who. knowing that pavment on the spot or anv goods supplied or serice done is required or expected o
him. dishonestlv makes o without haing paid.and with intent to aoid pavment`. An intent to delav or
deer pavment is not. howeer. enough. Bv s 3 2, pavment on the spot` includes pavment at the time o
collecting goods on which work has been done or in respect o which serice has been proided.

Blackmail
1his oence ormerlv consisted o a number o separate crimes under the Larcenv Act 1916. but here
again the 1A simpliied the law bv making it a single oence which is committed bv a person who ritb a
rier to gaiv tor biv.ett or avotber or ritb ivtevt to cav.e to.. to avotber. va/e. avy vvrarravtea aevava ritb vevace.` s
211,,. And such a demand is unwarranted` unless the person making it does so in the belie: a, that he
had reasonable grounds or making it and b, that the use o the menaces is a proper means o enorcing
the demand`. 1hus i X savs to \ whether or not \ in act has one, I will reeal vour criminal record
unless vou pav me ]100` this will priva tacie be blackmail: but the state o X`s mind is material. and i he
reallv thinks that he is justiied in demanding the monev because. or example. it is monev \ alreadv owes
him. ava i he also thinks that a threat to reeal a criminal record is a proper wav o extracting a debt. X
will not be guiltv. But it will be realized that it would be diicult to establish such an ingenuous state o
mind to the satisaction o a jurv.

1he maximum penaltv or blackmail is 14 vears` imprisonment.

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Handling Stolen Goods
1his was a new oence created bv the 1A. s 221,. Preiouslv it had been an oence onlv to receire goods
knowing them to hae been stolen. but bv the subsection the scope o this kind o criminalitv is widened.
or A person bavate. stolen goods i.knowing or belieing them to be stolen.he ai.bove.tty receire. the
goods. or dishonestlv vvaerta/e. or a..i.t. in their retevtiov. revorat. ai.po.at or reati.atiov bv or or the beneit
o another person.` 1his o course embraces much more than actual receiing and the section would. or
instance. coer the case o a person who assists a thie to conev the stolen goods to a hiding place
knowing or belieing it to be stolen propertv. lere again the word ai.bove.tty` is important because an
honest motie mav negatie a dishonest intent. 1hus i \illiams steals \alters` car and takes it to \right
who knows it has been stolen and accepts delierv o it. \right will not be guiltv i his purpose in doing
so is to restore the car to \alters. lere the courts load the dice in aour o the criminal. or the proo o
guilt must be positie: it has been held that it is not enough to establish that a reasonable man would. in
the circumstances. suspect that the goods in question were stolen. it must be shown that the accused did
beliee them to hae been or that he deliberatelv closed his eves to the obious.

A person does not assist in the retention o stolen goods` merelv bv using them when thev are in the
possession o another: he will onlv do so i he does something actie to assist`as bv concealing them or
concealing the act that thev are stolen. 1hus where a husband brought home stolen goods and his wie
knowing that thev were stolen, used them in the home it was held that the mere use was not an
assistance`. but when the wie lied to the police and said she had bought them this did amount to
assistance`. A person assists in realization` i he buvs the propertv himsel: so that handling` is not
conined to the normal case o the ence` who disposes o it to others.

It should be added that bv the 1A. s 243, it is enacted that no goods shall be regarded as haing
continued to be stolen goods ater thev hae been restored to the person rom whom thev were stolen or
other lawul possession or custodv`. 1hus where a person receies goods knowing that thev were stolen he
will not be guiltv i in act. unknown to him. thev hae passed into the possession o the police.

1he maximum punishment or this oence is 14 vears` imprisonment.

Restitution of Stolen Property
\here a person has been depried o his propertv bv means o a criminal act it is onlv right that. i
possible he should recoer it. Satisaction can alwavs be had bv resort to a ciil action and it mav be and
oten is, eected bv administratie action on the part o the policethough. in order to saeguard
themseles against a ciil claim or conersion the latter should applv or a court order under the Police
Propertv, Act 189. 1his Act proides that where propertv has come into the possession o the police in
connection with avy crivivat cbarge. magistrates` courts mav order it to be deliered to anv person appearing
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to be the owner: and ater the expirv o six months rom the delierv claims to it bv third parties are
barred. \et in some circumstances it mav assist the owner to hae the actie help o the court which
conicts the thie. 1he 1A. s 28. thereore empowers anv court which has conicted a person o anv
oence ritb reterevce to tbettan expression suicientlv wide to embrace. or instance. a case o handling
to order anv person in possession o the stolen propertv to restore it to the person entitled to it. And.
reasonablv enough. an order mav also be made in respect o anv goods which represent the stolen
goodse.g. B steals A`s horse and then exchanges it or a cow. Moreoer. since in such a case B might
rather sell than exchange the horse. the court mav also order pavment to the owner o anv monev taken
out o the conicted person`s possession at the time o his apprehension. not in excess o the alue o the
thing stolen.

linallv. in order to aord some protection to third parties who mav suer bv reason o the thet. it is
proided that where the thie has sold or pledged the goods to such people being in good aith and
ignorant o the thet, and the owner has obtained an order or the return to him o the goods. these
people mav themseles obtain an order or pavmentup to the alue o the price thev paid or the loan
thev gaeo anv monevs taken out o the possession o the miscreant at the time o his apprehension.
1hus Jasper steals 1om`s car and sells it to lred who knows nothing o the thet,: 1om obtains an order
against lred or the return o the car to him: then lred mav. i bv good ortune Jasper has the cash upon
him at the time o his arrest. obtain an order or the repavment to him o the purchase price out o
Jasper`s ill-gotten gains. Such an ideal solutionJasper behind bars. all propertv rightullv restoredmust
o course in practice seldom be achieed. or monev does not stick to the ingers o thiees: and as likelv
as not Jasper will at least appear upon arrest to be penniless.

5.2.3.2 Criminal Damage
1he law in respect o damage to propertv was ormerlv mostlv contained in the Malicious Damage Act
1861 -and it was ragmented. detailed and complicated. 1hat Act has now been substantiallv repealed
and replaced bv the (riminal Damage Act 191 hereater (DA`,: a statute containing generalizations
which seem less complicated. but hae proed to be more diicult to applv.

Under the (DA there are now three main oences:
i, 1he oence o ae.troyivg or aavagivg property s 1,. 1his is committed s 11,, where a person.ae.troy. or
aavage. avy propertv betovgivg to avotber ivtevaivg to destrov or damage avy .vcb propertv or being rec/te.. as to
whether avy such propertv would be destroved or damaged`. It is to be noted that the destruction o the
oender`s orv propertv is vot here included. and that it has been held that. howeer unjustiied the belie.
it is a deence to establish that the deendant tbovgbt that the propertv was his own. 1he intention or
recklessness need not necessarilv be directed to the propertv actvatty aected: thus i I shoot at vour pet
pigeon and hit vour neighbour`s bv mistake the oence will be committed. 1his oence s 12,, also takes
|virer.ity ot avvorer Cevtre tor .pptiea ivgvi.tic. ava peciat avgvage. Ca.e. c Materiat.: vgti.b tor ar


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an aggraated orm where the intent or recklessness, in relation to the destruction o or damage to the
propertv is linked with an intent to evaavger tbe tite ot avotber per.ov. or with reckless disregard o such danger.
1he test o the intention is whether a prudent bvstander would hae enisaged an obious risk that the
propertv would be damaged and lie therebv endangered. But. or this oence to be committed the danger
to lie must arise rom the damage to the propertv. 1hus i I ire at a window o a room when there is
someone in the room the oence mav be committed because o the danger rom broken glass. I.
howeer. I ire at a wall which is unlikelv to disintegrate,. een though the shot mav endanger lie. I
cannot be charged under s 12,. 1he propertv destroved vay be the miscreant`s orv-as or example where
Ned blows up his garden shed. reckless to whether he endangers the lie o 1ed. his neighbour. In the case
o an oence under either s 11, or s 12, i the agent o destruction is tire the charge will be one o ar.ov`
s 13,, which. with the coming into eect o the (DA ceased to be a common law oence,.

Recklessness` in the case o criminal damage has the same meaning that it has in relation to manslaughter.

It should be noted that a person will be guiltv o arson i. haing started a ire bv accident. he takes no
steps to put it out. 1hus. where a man in a boarding house set ire bv accident, to his mattress with a
cigarette and then let the ire to spread while he calmlv remoed himsel to another room. he was held
guiltv.

\hereas drunkenness is no excuse or a charge under s 11, it mav be a deence under s 12, because that
sub-section requires a speciic intent to endanger lie. etc which mav be negatied bv drunkenness.

ii, 1he oence o tbreatevivg to destrov or damage propertv s 2,. 1his will be committed bv anvone who
makes to another a tbreat. intending that the other would ear it would be carried out: a, to ae.troy or
aavage anv propertv belonging to tbat otber or a tbira per.ov: or b, to destrov or damage bi. orv property in a
wav which he knows is likelv to evaavger tbe tite ot tbat otber or a tbira per.ov`.

iii, 1he oence s 3, o po..e..ivg anvthing with intent to destrov or damage propertv. 1his crime will be
committed where a person has anvthing in his custodv or control` intending.to use it or cause or pervit
avotber to v.e it: a, to destrov or damage anv propertv betovgivg to .ove otber per.ov: or b, to destrov or
damage his orv or the v.er`. propertv in a wav which he knows is likelv to endanger tbe tite ot .ove otber per.ov.

None o the oences under these sections will be committed i the accused has some tartvt ecv.e` and it
is. as alwavs. or the prosecution. it aovbt ari.e.. to establish the absence o lawul excuse`. In the case o
inractions o ss 11, and 2a,. howeer. this phrasebesides its ordinarv meaning. as embraces. or
example. mistake or sel-deenceis gien an extended meaning s 5, so as to include two special kinds o
circumstances. 1he irst o these s 52,a,, is where the perpetrator beliees that he has in doing what he
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does, the consent o anv person who is. or whom he beliees to be. entitled to gire cov.evt to the act. 1he
second s 52,b,, is where the perpetrator causes the destruction or damage while using reasonable means
to protect propertv o his own or o another which he beliees to be in immediate need o protection or
instance the case o the sheep-worrving dog,. But the need must be immediate: and it is no answer to
setting ire to a house that the arson was committed in order to draw attention to the eectieness o its
ire alarm. \hether the belie is justiied or not is irreleant proided that it is honestlv held s 53,,.
lence i drunkenness so prominent in relation to this crime, induces an honest. though mistaken. belie
that the propertv damaged belonged to X who would hae consented to it, rather than to \ who would
not, the oence will not be committed.

lor the purposes o the (DA propertv` means s 10, property o a tavgibte nature whether real or personal.
including vovey`: rita mushrooms and the ttorer.. trvit and totiage o wild plants. trees and shrubs are.
howeer. excluded. lere there is no proiso as to commercial purposes see 1A. s 43,,. Perhaps the
rambler who picks a wild lower should bear in mind the judgment o Portia and rerain rom taking anv
o the .tev. 1he seering o branches o hollv would certainlv appear to all oul o the 1A. s 4 and o this
section.

A person guiltv o ar.ov or o an oence under the (DA. s 12, mav receie lie imprisonment: oences
under the (DA carrv a ten-vear maximum.