FB’s Column in Criminal
Law & Justice Weekly (No. 3)
CL&J (3 & 10 Jan 2009) 14-17
||Doc. No. 2009.005
An Occasional Medley of Legal
Howling Dog Kennels
Within a residential area of Southampton,
in Hythe, said Moses LJ in an appeal by way of case stated ,
the Manleys own and operate kennels known as the Howling Dog Kennels
in which, certainly at the time of the judgment, there were 24
huskies, dogs in pairs. Mrs Manley and her husband are highly
successful in the breeding, showing and racing of Siberian Huskies.
But, as the name of the kennels reveals, the dogs unfortunately
make a noise. There are certain times of day when spontaneously,
what is described as pack howling reaches a level which, as was
found as a fact both by the District Judge and by the Crown Court,
amounts to a nuisance.
Readers are indebted to Neil Parpworth
for an interesting article on this case .
Two things struck me forcibly when I read what he wrote.
The first thing was that reg. 2(2)(c)
of the Statutory Nuisance (Appeals) Regulations 1995 ,
provides that it is a ground of appeal for the defendant to show
that “the best practicable means were used to prevent, or
to counteract the effects of, the nuisance”. So where the
best practicable means fail of effect, so that the neighbours
are still plagued by what was in this case insufferable noise,
it’s just too bad. They must suffer it without legal redress.
That doesn’t strike me as justice, though Moses LJ had no
comment to make on it.
The other thing that struck me most
forcibly was the impudent name that the Manleys chose to give
their kennels. They might just as well have called them the Public
Nuisance Kennels, because premises where 24 huskies are kept in
a residential district are practically certain to be that. Talk
about cocking a snook at the neighbours! Again, Moses LJ did not
Mortgage Repossessions: Law
Making By Stealth
One of the first things New Labour
did on attaining power was to pass the Civil Procedure Act 1997.
Section 6(1) of this provides for the setting up of the Civil
Justice Council, which it describes as “an advisory body”.
This sounds harmless enough. A purely advisory body would not
possess any executive or legislative powers. But wait.
Switch to 22 October 2008, when
the Treasury announced the following:
“The Master of the
Rolls has today approved the Civil Justice Council’s new
protocol for the courts in mortgage repossession cases. This sets
out clear guidance on the steps that lenders are expected to take
before bringing a claim in the courts to ensure that repossessions
are a last resort. Lenders will now be expected to demonstrate
that they have tried to discuss and agree alternatives to repossession
when borrowers get into trouble with their mortgage repayments.
If a case reaches court, lenders will be required to tell the
court precisely what they have done to comply with the protocol.”
This uses s. 6(1) to go well beyond
the giving of advice: it attempts to effect a major change in
the law. But does it succeed? I suggest that the purported protocol
is ultra vires and void.
The same Treasury announcement contains
the following statement by Yvette Cooper, the Chief Secretary
of the Treasury: “We need to make sure we help those who
might be hardest hit in the tougher times ahead, ensuring repossession
is the last resort not the first”. “We” here
refers to the Treasury, a branch of the Executive. This is legislation
by the Government.
That impression is confirmed by
a message in the same announcement by the Justice Minister Bridget
Prentice, who says: “The new Civil Justice Council protocol
forms part of a wider package of measures which demonstrate this
Government’s commitment to provide the best possible support
to debtors and vulnerable borrowers.”
We are supposed to live under the
rule of law. This is not law, it is Government ukase. For those
unfamiliar with that word I give the OED definition: “An
order or regulation of a final or arbitrary nature”. The
OED gives the following as an example: “The Empress of Russia
issued an ukase, whereby various taxes are abolished”.
Yvette Cooper MP may be surprised
to find herself likened to the Empress of Russia under the Tsar.
A New Bill of Rights?
There are nowadays fads and fancies
in law, which used not to be the case (truly, law is too important
for that). One of these is for having a new Bill of Rights for
the United Kingdom, simply (as my White Russian friend Prince
Igor puts it) because the idea is fashionable and imagined to
be “with it”. Apparently there is also going to be
an additional one for Northern Ireland. The Observer
published an item headed “Failure to share housework to
be a breach of partner’s rights”.
The paper said it had obtained a draft of a Bill of Rights for
Northern Ireland which is to be enacted by the Westminster Parliament
in pursuance of the Good Friday Agreement. It is alleged to include
“All workers, including
those working in the home or in informal employment, are entitled
to rest, leisure, respite and reasonable limitation of working
hours, as well as appropriate provision for retirement.”
This carries social engineering
by Government to remarkable lengths. It parallels the announced
intention of Prime Minister Gordon Brown to introduce a new Bill
of Rights for the whole United Kingdom. On 16 January 2008 I received
an invitation from Roger Smith, head of Justice: “Would
you be interested in attending a short discussion between myself
and Jack Straw [the Lord Chancellor] on the subject of a Bill
of Rights, to take place at the Guardian Newsroom, opposite
the Guardian main building in Farringdon Road, from 9.30-11am
on Monday morning 21 January? I declined, adding that I would
however like to send through him the following message to the
“On no account inflict
a new Bill of Rights on us. Practising lawyers in that field love
the idea, it promises more work. The said work will (if the thing
happens) be for everyone else an unproductive nuisance.
More than that, it will inevitably
mean more power to the judges and less practical democracy. It
will clash with the Human Rights Act 1998 and the new European
Charter of Fundamental Rights (which already clash with each other).
The tangled complexity of
the legal system that now operates in this country (also bearing
in mind the effect of devolution) is already intolerable from
the point of view of knowing and teaching the law and administering
justice. I can see no advantage to anyone, except certain lawyers,
in piling on another layer in the form of a new Bill of Rights.
The extraordinary thing is
that no one has said what would be in a new Bill of Rights, or
why we are supposed to need it. It seems to be embraced in a thought-free
way as being the latest must-have fashion accessory.”
Undeterred by this, Mr Straw has
recently tried to get Cabinet approval for the new Bill of Rights.
Apparently the Cabinet are not having it. According to a report,
the Prime Minister’s high-profile plan to introduce a “Bill
of rights and responsibilities” is in disarray following
a cabinet revolt. Ministers have warned him that his proposed
charter laying out the rights and duties of citizens is unworkable
and “could pave the way for a deluge of court cases”.
The report adds that the Government’s
legal advisers warned of “massive difficulties”, questioning
how social and economic rights could ever be justiciable and doubting
whether a new right to equality is necessary given also that the
Government was also promoting an equalities Bill (now the Equality
So there’s hope for us yet.
Igor says it will be a close-run
thing though. (His command of English
idiom is growing.)
The Minister Intervenes
In the United States the naming
of an Act (whether formal or informal) is regarded as having political
significance. William Safire discusses what he calls acronymania,
or the naming of legislation based on acronyms, and the effect
of calling the post 9/11 rallying enactment the Patriot Act by
an acronym from the slogan Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism.
In the United Kingdom the short
title of an Act is normally devised by the drafter of the Act
without particular attention to its political effect.
It is felt by drafters that the selection of the wording should
follow normal practice and not be designed to score party-political
The two viewpoints came into collision
over the wording of the short title to the Tenants’ Rights,
Etc (Scotland) Act 1980, which has recently come into prominence
in a radio programme.
The politician in question was Sir Malcolm Rifkind. I put it in
Rifkind’s own words:
“The draft Bill came
from the parliamentary draftsmen and the Bill was headed Housing
(Scotland) Bill and I thought that’s a very uninteresting
title, not something that is very politically stimulating, so
I sent back a note saying If they didn’t mind I’d
rather it be called the Tenants’ Rights (Scotland) Bill
because I not only thought that met the Government’s political
objectives but I knew that it would be particularly irritating
for the Labour party to have to vote against something called
I got a message back from
the draftsmen saying, no, that would not be possible. All Scottish
housing legislation had always been called Housing (Scotland)
Bills and in any event although its main purpose was tenants’
rights there were other things in it. So I said ‘OK, I offer
you a compromise’ and the compromise, which was the one
they, without any great enthusiasm, had to accept, was that it
became known as the Tenants’ Rights, Etc (Scotland) Bill
and it is now the Tenants’ Rights, Etc (Scotland) Act. So
ministers had the last word I’m relieved to say.”
In fact ministers did not have the
last word. The provisions Rifkind wished to trumpet constituted
Parts I and II of the 1980 Act. Seven years later another Act
took these provisions into itself and repealed them as they stood
in the 1980 Act. This later Act was a consolidation Act. Its short
title was the Housing (Scotland) Act 1987.
The function of an Act of Parliament
is to lay down the law, not be a vehicle for politicians’
grandstanding. There are reasons for the drafter’s preference
for the form “Housing (Scotland) Act”. It is short
and snappy, and accurately descriptive. Where a short title has
been used before in a series, it is important to show that the
present Act is part of that series, i.e. is in pari materia
with the earlier Acts. Furthermore the series may have been given
the collective title “The XYZ Acts [year] to [year]”.
This is convenient for reference, though not always actually used.
Where used it needs to be maintained.
Those are sober technical factors
which told against what the simple-minded Rifkind insisted on
doing. The state of the Statute Book was just that little bit
the worse – for a time.
Absurdity Over Voyeurism
Voyeurism has never been a crime
at common law. By the Sexual Offences Act 2003 Parliament made
it a crime for the first time in our history. In 2007 various
people took leave of their senses by treating as criminal voyeurism
under the Act the photographing of a showering man wearing
bathing trunks. The convicted victim was a man named Kevin
Our Judges once firmly proclaimed
the superiority of common law over statute. Peter Landry said:
“The common law exists
as a result of a natural sequence which hardened first into custom
and then into law. It did not come about as an act of will, as
an act of some group aware only of the instant moment, unaware
of the nature and history of man. It came about as a result of
a seamless and continual development. Through processes we can
hardly begin to understand; it evolved along with man.”
I wish this attitude of respect for the common law still prevailed
among our judiciary. Many of them now accept the crudity of legislation
meekly and uncritically. One such is Lord Justice Hughes, who
did however quash Mr Bassett’s ridiculous conviction.
In the Court of Appeal he gave the only judgment. I would have
liked it to run on the following lines.
It is preposterous and ridiculous
that anyone should be held guilty of criminal voyeurism for photographing
a man wearing bathing trunks having a shower. If the 2003 Act
appears to require that it should be closely scrutinized to see
if there is any way out. One exit would be by applying the commonsense
Another would be resort to the presumption that Parliament does
not intend an absurd result.
Particularly relevant is the presumption against an anomalous
Next, it is desirable to examine
carefully the precise words in the Act that seem to lead to the
preposterous and ridiculous result. They are the following, found
in s. 68(1)(a): “the person’s genitals, buttocks or
breasts are exposed”. In the court below Judge Plumstead
had held that “breasts” here included male breasts.
This was because the word “person” includes both males
and females. However that is only where the context does not otherwise
require. In this case, in relation to the word “breasts”,
the context plainly does otherwise require. The plural word is
not normally applied to males, and the bare chest of a male, unlike
the bare breast of a female who has reached puberty, is not regarded
as having erotic attributes.
In ruling thus in the judgment I
would also have castigated
the author of this sloppy wording.
Hughes LJ did none of these things.
Moreover he committed the solecism of misusing the term “begs
which properly refers to the logical fallacy known as petitio
principii. He also transgressed in saying that the definition
in s. 68(1) “does carry the difficulties inherent in such
As a legislative draftsman of wide and long experience, I can
assure him that the difficulty was caused by bad drafting, and
is not in any way “inherent in such definitions” if
they are properly drawn.
Why didn’t our enacting process
get rid of the nonsense of saying “the person’s .
. . breasts are exposed” with its obvious difficulties in
relation to male persons (or even female persons when they have
not attained puberty)? What was our famed revising chamber doing?
Why do so many of our Judges seem to know little or nothing about
the common law principles of statutory interpretation?
One last complaint about Hughes
LJ’s judgment. It does not mention the name of the judge
he is reversing, which I had to get from a newspaper report.
This is an unwelcome break from former practice.
Important Private Rights
In a 2006 article I criticised Lord
Bingham of Cornhill, the Senior Law Lord, for calling the citizen’s
historic right to bring a private prosecution an anomalous historical
survival which is of questionable value and can be exercised in
a way damaging to the public interest.
This judicial comment was particularly questionable in view of
the fact that the right has been carefully preserved by a modern
Act of Parliament.
Other legislation upholding a private
of this kind is rule 32.14 of the Civil Procedure Rules. It allows
a private citizen, with the permission of the court, to bring
proceedings for contempt of court against a person “if he
makes, or causes to be made, a false statement in a document verified
by a statement of truth without an honest belief in its truth”.
Allowing a recent appeal against
refusal to give permission to a private citizen to bring proceedings
for contempt under CPR r 32.14, Moore-Bick LJ, giving the judgment
of the Court of Appeal, said:
“When the court gives
a private person permission to pursue proceedings for contempt
against a witness who is alleged to have told lies in a witness
statement it allows that person to act in a public rather than
a private role, not to recover damages for his own benefit, but
to pursue the public interest.”
He added that the conclusion of
the judge below that proceedings for contempt in the present case
would be unlikely to promote the integrity of the legal process
or respect for it in the future was unacceptable. While only prominent
examples that are widely reported in the press can be expected
to make an impression on the public at large, that ignores the
fact that the pursuit of contempt proceedings in ordinary cases
may have a significant effect by drawing the attention of the
legal profession, and through it that of potential witnesses,
to the dangers of making false statements. His Lordship went on:
“If the courts are
seen to treat serious examples of false evidence as of little
importance, they run the risk of encouraging witnesses to regard
the statement of truth as a mere formality. That is not a matter
which the judge appears to have taken into consideration. In my
view the prosecution of proceedings for contempt in the present
case would be likely to have a salutary effect in bringing home
to those who are involved in claims of this kind, of which there
are many, the importance of honesty in making witness statements
and the significance of the statement of truth.”
Work experience at the Bar
The Rt Hon. Earl Forsooth K.G. holds
forth about a schoolgirl who gave herself airs.
21 December 2004
Miss Henrietta Lacey
Dear Miss Lacey,
As the friend and patron of a number of distinguished barristers
I am writing about your impudent letter in the Times.
You should have felt honoured at having been accorded the high
privilege, at the mere age of sixteen, of a week’s work
experience in barristers’ chambers. Instead you childishly
object to having been expected to make the tea, and clearly show
you think others should have made the tea for you. You resent
having been asked to run errands. What arrant nonsense!
I suppose this is not really your fault; clearly you have been
badly brought up. You should know that even pupils in chambers,
who are qualified barristers with years of arduous training, expect
to be treated as dogsbodies. That has long been considered part
of the process of being licked into shape at the Bar.
Instead of grumbling in this puerile way, if you possessed any
of the right qualities you would appreciate having had the rare
opportunity (at sixteen!) to get the feel of barristers’
chambers, and meet some of the august people involved. Humility,
not insufferable arrogance, would have been a becoming attitude
for you to adopt.
From what you write it seems you expected to handle a brief in
the High Court on your first day in chambers. I do hope that in
the course of time you manage to grow up.
Manley & Anor v New Forest District Council 
EWHC 3188 (Admin) at .
172 JPN (29 November 2008), pp. 784-786.
See Treasury website http://www.hm-treasury.gov.uk/press_108_08.htm.
Observer, 30 March 2008.
Sunday Times, 2 November 2008.
William Safire, The Right Word in the Right Place at the Right
Time (NewYork: Simon & Schuster 2004), p 5.
See Bennion on Statutory Interpretation (5th edn, 2008),
Shaun Ley in The Westminster Hour, BBC Radio 4, 7 December
Peter Landry, The Common Law: Tradition and Stare Decisis
(2004). Accessed on 27 October 2008 at http://www.blupete.com/Literature/Essays/BluePete/LawCom.htm.
R v Bassett  EWCA Crim 1174. See 172 JPN, p. 708.
See Bennion on Statutory Interpretation (5th edn, 2008)
Ibid., s. 312.
Ibid., s. 315.
Paragraph 8 of the judgment.
The Daily Telegraph, 16 May 2008, http://www.telegraph.co.uk/news/1962326/Breasts-not-for-looking-but-pecs-are-okay%2C-say-Court-of-Appeal.html.
See F A R Bennion, “Jones v Whalley: Constitutional
Errors by the Appellate Committee”, 170 JPN (4 November
2006) pp. 847-850.
See Prosecution of Offences Act 1985 s. 6(1).
KJM Superbikes Limited v Hinton  EWCA Civ 1280
Ibid. at .