Land Law

(1) It seems to me that the law on rescission of mortgages for undue influence after Etridge is completely backwards. Post-Etridge, the law says that if a wife is acting under the undue influence of her husband in agreeing to a mortgage of the family home, then the bank granting the mortgage is put on notice that the wife is acting under undue influence if the deal under which the mortgage is granted is really good for the husband and really bad for the wife. The bank can then reassure itself that the wife is not acting under undue influence by ensuring that she obtains independent legal advice, and the solicitor giving the advice certifies that she has been advised as to the effect of the transaction on her interests. If the wife then goes ahead, then the bank can breathe easy and assume that the wife has decided for herself that this is what she wants to do. (Though note that there is an exception to this – as shown by the Credit Lyonnais v Burch case – where a deal is SO bad that the willingness of the mortgagor to go ahead with it after having had independent legal advice is evidence that there is something REALLY funny going on.) If things subsequently go wrong, and the bank attempts to enforce the mortgage, the wife won’t be able to rescind the mortgage and the best she will be able to do is sue the solicitor who advised her about the effect of the transaction she was entering into for negligent advice. This seems to me to be completely wrong. The wife – who, we are assuming (otherwise there would be no issue), was induced by her husband’s undue influence to mortgage the family home – is made homeless, and is then told that that’s okay because she might be able to sue the solicitor who advised her about the mortgage for negligent advice. But, being homeless, suing someone will be the last thing she will be in a position to do. It would seem far more sensible for the law to say that if the wife turned out to have mortgaged her house under undue influence, she should be able to rescind the mortgage (whatever the bank’s degree of notice about the undue influence); and it will then be up to the bank to try to recover its money by suing the solicitor who advised the wife for negligent advice. This way, the wife will not be made homeless and the burden of litigation will be placed on the person best able to conduct it: the bank. The one problem with this is that the bank could only sue the solicitor for negligent advice if the solicitor was working for the bank in advising the wife as to the wisdom of the transaction she was entering into. This may be a problem as the courts might say that he was acting for the wife in advising her. But this problem is not insurmountable: so long as the bank gets the solicitor to report back to it as to his/her impression of the wife’s state of mind, then it shouldn’t be too difficult for the bank to sue the solicitor if he is negligent in reporting that the wife is acting of her own free will when she isn’t.

(2) We should also note a real oddity in the law on the rescission of mortgages for undue influence created by the decision of the House of Lords in Barclays Bank v O’Brien. It is well-established that the courts will not presume that a wife was acting under undue influence in agreeing to the mortgage of her house just because the deal under which the mortgage was granted was good for the husband and bad for the wife. That is because the courts make the assumption that as a matter of social fact, wives don’t generally act under the influence of their husbands. (It’s different for people who are engaged to each other – they are so loved up, it is quite easy for engaged person to influence his/her fiancée/fiancé into acting in a particular way. It is different once  two people get married: then disillusionment sets in and it’s very hard for a wife to get her husband to do anything, and vice versa.) So they aren’t prepared to presume as between a wife and her husband that there existed a relationship of influence between them. So for a wife to establish that she was acting under her husband’s undue influence in agreeing to a mortgage she first has to prove that there actually existed a relationship of influence between them where she would do whatever her husband wanted her to do; if she can do that, then she can raise a presumption that her husband used his influence over her to get her to agree to the mortgage by showing that the deal under which she agreed to the mortgage was really bad for her and really good for her husband. This is all well and good. But if the wife can establish that she agreed to the mortgage because of her husband’s undue influence, that won’t be enough to allow her to rescind the mortgage. She will also have to show that the bank is affected by her husband’s undue influence: either because the husband was acting as the bank’s agent in getting her to enter into the mortgage, or because the bank had notice of the undue influence. And this is where the oddity comes in. O’Brien says that the mere fact that the deal under which the wife agreed to the mortgage was really good for the husband and really bad for the wife is enough to put the bank on notice that the wife is acting under the undue influence of her husband. But we’ve already seen that the mere fact that a deal was really good for the husband and really bad for the wife won’t be enough to make the courts think that the wife entered into that deal under her husband’s undue influence – so why should it be enough for the banks? It seems as though that when the courts approach a transaction with a view to determining whether the wife entered into it under the husband’s undue influence, they do so assuming that married women are bold, free spirits who decide for themselves what they are going to do; but the courts at the same time instruct banks who are contemplating entering into a transaction with a married couple to assume that married women are quivering, timorous creatures who vulnerable to being pushed around by their husbands into doing whatever their husbands want. As I say, it’s very odd.

Constitutional Law

On the rule of law

(1) It is essential to realise that the rule of law means different things to different people – and distinguishing between ‘substantive’ and ‘procedural’ ideals of the rule of law (a la Craig) won’t help you one little bit to realise the differences between different views of what the rule of law means. The key idea underlying the concept of the rule of law is the phrase ‘rule by law, not men’ – but that ideal plays out in different ways for different people.

(2) Some people – particularly jurisprudence specialists such as Lon Fuller and Joseph Raz – focus on the ‘rule by law’ bit of the above phrase, and ask what would have to be true of law if it were genuinely to be capable of ruling (= guiding) people’s actions. And they say that the law would have to be published, and clear, and certain, and prospective, and non-contradictory, and not make impossible demands of its subjects, and people would have to have an assurance if they obeyed the law they would not be harmed by the state. This, for them, is what the rule of law requires.

(3) But other people – particularly constitutional lawyers – focus on the ‘not by men’ bit of the above phrase, and argue that the rule of law requires that all power exercised by the state should be subject to legal constraint to ensure that it is exercised reasonably. To people who think this way, the doctrine of Parliamentary sovereignty is a standing affront to the ideal of the rule of law. The idea that Parliament is free to legislate as it pleases without any kind of legal constraint on how it may exercise that power is incompatible with these theorists’ ideal of what the rule of law entails. Similarly, the idea that the only limits on how certain public powers are exercised are unofficial ones, arising out of the fact that there exist conventions as to how those powers are to be exercised, is unpalatable to academics who adopt this second view of the rule of law – they want all public power to be subject to the hard limits of law, not the soft limits of expectation and protests when those expectations are subverted. These theorists will have been delighted by the decision in GCHQ that powers arising under the royal prerogative are subject to judicial review – thus bringing the exercise of those powers under some kind of legal control.

(4) There is a third view of what the rule of law entails, one which sees it as requiring that the law not be arbitrary in its application. On this view, we can only be said to live under the rule of law if the laws under which we live have – in Ronald Dworkin’s phrase – ‘integrity’: that they can be seen as giving effect to a unified and coherent vision of what rights and duties we have under the law. On this view, it would be incompatible with the rule of law for one area of law to strongly affirm the value of privacy, while another area of law allows people’s privacy to be trampled underfoot. A legal system of which that were true would be arbitrary and lack integrity. Instead, the judges should strain to ensure that the same values penetrate the whole of law, rendering the law a seamless web. So in interpreting a statute dealing with police powers to search people’s premises, the rule of law requires – on this third view of the ideal of the rule of law – that judges should interpret that statute in light of the values that underlie the rest of the law. And if the rest of the law affirms the importance of privacy, then judges need to interpret the statute authorising searches of people’s premises in a way that also affirms the importance of privacy.

(5) These different views have nothing to do with each other and must not be confused. On the first view of what the rule of law entails, Parliamentary sovereignty may be a good thing – as a rule which said that ‘grossly unjust enactments are legally invalid’ would render the law radically uncertain. Whereas on the second view, Parliamentary sovereignty is incompatible with the rule of law. And giving effect to the third view of the rule of law would be incompatible with the first view of what the rule of law entails – because requiring the judges to promote the integrity of law in the way they decide cases would make it radically uncertain what the outcome of a case would be, thus undermining people’s abilities to follow the law.

On Parliamentary sovereignty

(1) We almost certainly don’t have enough evidence to determine the question of whether Parliament is sovereign, even in theory. Constitutional theorists who say that Parliament is sovereign are extrapolating from a bunch of authorities that give effect to Acts of Parliament that are pretty innocuous. The fact is, we haven’t yet had any cases where the courts have shown that they regard themselves bound to give effect to statutes authorising the slaughter of all blue-eyed babies, and the like. Until we do, our data set doesn’t allow us to say whether or not Parliament is sovereign. We genuinely don’t know what would happen if Parliament tried to pass legislation authorising the slaughter of all blue-eyed babies.

(2) But we don’t have any evidence either to say that Parliament is not sovereign. The fact that the UK courts will disapply a UK statute – like the Merchant Shipping Act 1988 – if it is incompatible with EU law (as laid down in the treaties of the European Union) does not necessarily show that Parliament is no longer sovereign. If we adopt a dialogic model of sovereignty (see Po Jen Yap, ‘Defending dialogue’ [2012] Public Law 527), according to which the courts are as concerned as they ever were to give effect to Parliament’s intentions, but are much more willing now to engage in a dialogue with Parliament to determine what those intentions are, then a decision like the one in Factortame becomes easily reconcilable with the doctrine of Parliamentary sovereignty. Basically, what is happening in a case like Factortame is that the courts are saying to Parliament, ‘We’re presuming that you didn’t intend to legislate contrary to EU law, but on this occasion you screwed up and passed a statute that does violate EU law. So we’ll do you a favour and declare this legislation to be invalid, which is what we presume you want us to do. But if you did – contrary to our expectations – intend to violate EU law in passing this legislation, then just pass it again and this time say expressly that it is intended to apply even if it is inconsistent with EU law. If you do that, then we’ll give effect to the legislation.’ Support for the idea that the courts will give effect to legislation that is incompatible with EU law so long as the legislation makes it clear that it is intended to violate EU law is provided by Thoburn v Sunderland City Council.

(3) Note that the dialogic model works slightly differently with statutes that violate the European Convention on Human Rights. The courts will again approach the legislation on the assumption that Parliament did not intend to legislate contrary to the ECHR. If it’s clear to them what Parliament would have wanted the legislation to say had they been told that as it currently stands, it violates the ECHR, the courts will exercise their powers under s 3 of the HRA 1998 to re-interpret the Act to bring it into line with the ECHR and with what Parliament would have wanted the legislation to say had it realised that the legislation, as currently drafted, violated the ECHR. This is what happened in Mendoza v Ahmad Ghaidan when the courts reinterpreted the Rent Act 1977 as giving the same rights to the surviving member of a homosexual couple as it did to the surviving member of a heterosexual couple – and this was so even though s 2(2) of Schedule 1 of the 1977 Act expressly said that it applied only to ‘a person who was living with the original tenant as his or her wife or husband’. The House of Lords felt able to exercise their powers to reinterpret the legislation so as to make it also apply to homosexual couples because it was abundantly clear to them that that was how Parliament would have wanted it to be interpreted had the problem with s 2(2) as originally drafted been brought to its attention. But where it’s not clear how Parliament would want a statute that violates the ECHR to be interpreted so as to bring it into line with the ECHR, the courts cannot legitimately reinterpret it under s 3 to bring the statute in line with the ECHR – they couldn’t be sure that any interpretation they adopted would be consistent with Parliament’s intentions. In such a case, the courts won’t do what they do with legislation that offends EU law and disapply the legislation. Instead they will give effect to it, but at the same time issue a declaration of incompatibility under s 4 of the HRA, which is basically the courts telling Parliament, ‘We’re going to give effect to this legislation, but we’re putting you on notice that this legislation violates the ECHR. What do you want to do about it?’ And then it’s up to Parliament to decide whether it wants to amend the legislation to bring it into line with the ECHR.

(4) What about the dicta in Jackson v Attorney General and other cases suggesting that if Parliament were to pass a ‘ouster clause’ preventing the courts under any circumstances from judicially reviewing the actions of a particular public body (say, an immigration tribunal) then the courts might not give effect to that ouster clause? Do they establish that Parliament is not sovereign – at least so far as ouster clauses are concerned? Not really. If Parliament were to give a tribunal powers to determine immigration cases and at the same time created an ‘ouster clause’ preventing the courts from judicially reviewing the decisions of the tribunal under any circumstances, it would be basically contradicting itself. It cannot have intended, in endowing the tribunal with the power to determine immigration cases, to make those powers unlimited – thus allowing the tribunal to decide that it will only admit applicants who are good looking, or who will pay bribes to the tribunal members. But that is what it would effectively do if it prevented the courts judicially reviewing the decisions of the tribunal in any circumstances. Faced with this contradiction, all the courts can do is give effect to what they think Parliament really wants – and that would be to allow judicial review of the decisions of the tribunal, thus disapplying the ouster clause.

(5) Finally, what about the argument that Parliament is not sovereign because Parliament is bound by earlier legislation that granted independence to colonial territories? This is, again, not a real exception to the doctrine of Parliamentary sovereignty. It just illustrates the fact that power can be given away through law, but can only be taken back through force. Independence-granting legislation changes certain facts on the ground and those facts cannot be reversed by repealing the independence-granting legislation: only brute force will do. It might be thought that the European Communities Act 1972 establishes an exception to the ‘rule’ just stated. The ECA, it might be argued, gave away various law-making powers to the institutions of the then European Economic Community (now, European Union), but those powers could be recovered through repeal of the ECA: no brute force would be required. But that is because the powers surrendered by the ECA were law-making powers. As the UK remains in charge of its own courts, and its judges owe their allegiance to the UK government alone, no brute force is required to recover law-making powers that have been surrendered for a while to some external institution.

On constitutional conventions

(1) To those who argue that constitutional conventions are, or should be, legally binding, a question: Is there a constitutional convention that the judges will not give legal effect to a constitutional convention? If so, the position of those who take the view that constitutional conventions are, or should be, legally binding is self-defeating.

(2) It cannot be argued that constitutional conventions are legally binding just because they are sometimes relevant to the outcome of a legal case (such as a case on whether a government minister has committed a breach of confidence). There are lots of things that are relevant to the outcome of a legal case that don’t amount to rules of law. For example, in deciding whether it is more likely than not that A’s tort caused B’s injury, the courts will take into account the rules of probability, but the rules of probability do not thereby become rules of law. To think otherwise is to endorse what some call ‘the King Midas’ theory of law, according to which everything the courts touch turns into law.

(3) Don’t think that just because a convention is set out in a code (such as the Ministerial Code) that we can say that convention is legally binding. Pembroke College, Cambridge might issue all its students with a code of conduct at the start of the year – but that does not make it legally binding on the Pembroke students.

(4) Discussions about the legal status of constitutional conventions are only allowed to continue because of their abstractness. If we focussed on particular constitutional conventions, we would see how absurd it is to suppose that they could ever be regarded as legally binding. For example, the convention that the Prime Minister will have an audience with the Monarch once a week to report on government business. If the Prime Minister decided that he/she didn’t fancy doing that anymore, could it really be supposed that a court would compel him or her to see the Monarch, or would issue a declaration that the Prime Minister is acting unlawfully in not having a weekly audience with the Monarch. Again: what about the convention that the Prime Minister will every week expose him/herself to questions from Members of Parliament for 30 minutes? If the Prime Minister cancelled Prime Minister’s Questions, is it realistic to think that there is anything the courts could or would want to do about that?

On the basis of judicial review (JR)

(1) Elliott & Forsyth argue that if you believe Parliament is sovereign then you must think that JR of statutory bodies is ultimately based on giving effect to Parliament’s intentions that the body be subject to JR – either Parliament did not intend that the body be subject to JR or it did intend the body to be subject to JR. In the case where Parliament did not intend for the body to be subject to JR, there will be no JR – if you believe in the sovereignty of Parliament. In the case where Parliament did intend for the body to be subject to JR, there will be JR –  and we don’t need any further explanation of why the body is subject to JR.

(2) Craig and Laws adopt the position which Elliott & Forsyth think is incoherent/impossible – they think that JR of public bodies is based on common law standards of good government, WHILE thinking that Parliament is sovereign.

(3) Allan agrees with Elliott & Forsyth that Craig and Laws’ position is incoherent/impossible, but with the object of pushing Craig and Laws to abandon their belief in the sovereignty of Parliament. Allan is immune from Elliott & Forsyth’s point as he believes that JR of public bodies is based on common law standards of good government, BUT does NOT think that Parliament is sovereign.

(4) I think Craig and Laws’ position is perfectly coherent – there is no reason why it is impossible to think (a) that JR of public bodies is based on common law standards of good government, and (b) that Parliament is sovereign. One simply has also to believe (c) that where upholding the sovereignty of Parliament comes into conflict with holding public bodies up to the common law standards of good government implemented through JR – as will happen when Parliament passes legislation ousting JR of a particular public body – Parliamentary sovereignty should prevail. There seems no reason why one couldn’t think this – the same standards of good government that underlie JR may also require that the courts recognise the sovereignty of Parliament, in order to ensure that the democratic will of the majority ultimately prevails.

(5) But the fact that Craig and Laws’ position is coherent does not establish that it is correct. We can test whose view is correct – Elliott and Forsyth’s or Craig and Laws’ – by asking what the reaction of the courts would be to an ouster clause. If Elliott and Forsyth’s view is correct, then the courts would have no hesitation and feel no regret at giving effect to the ouster clause – as JR of statutory bodies is based on Parliament’s intention, there is no basis for reviewing the actions of a statutory body that is protected by an ouster clause. But if Craig and Laws’ view is correct, then we would expect the courts to give effect to the ouster clause, but with profound misgivings, as doing so will involve failing to subject the statutory body in question to the common law standards of good government that the courts have good reasons to uphold – even if those reasons are overriden in this case by their stronger desire to give effect to the sovereignty of Parliament. It seems obvious that the courts would give effect to an ouster clause, but with regret and misgivings – as Craig and Laws’ view would predict, and Elliott and Forsyth’s would not.

On the separation of powers

(1) Everyone talks about the separation of powers – between the executive, legislature, and judiciary – as being a good thing, but we have reason to doubt this. First, the founders of the American constitution believed in the separation of powers as a way of making it really hard for the government to do anything. Having just fought a war of independence to free themselves from the control of a (in their eyes) tyrannical British government, the Founding Fathers were profoundly suspicious of the powers of government, and sought to divide them between different and antagonistic bodies so that it would be extremely difficult for the government to do anything. And some might say they did such a great job of this that it is now extremely difficult for the American government to do anything to solve the country’s problems over the economy, crime, and education. This is hardly a great recommendation for the separation of powers. Secondly, a true separation of powers creates the potential for the holders of those powers to exercise them arbitrarily as they cannot be held accountable to anyone else for how they exercise those powers – because if they could be held accountable, there would be no true separation of powers. So, for example, putting the power to create law in the hands of the legislature means that there are no limits on how that power can be exercised.

(2) Instead of enthusing about the separation of powers, then, we should instead explore the potential for sharing powers among different constitutional actors, so as to ensure that those powers are exercised properly and reasonably. The dialogic model of relations between Parliament and the courts (see the section on Parliamentary sovereignty above) provides the template for this idea of sharing power – with the courts and Parliament collaborating together to try to ensure that legislation does not infringe norms of human rights or EU law. Similarly, judicial review can be seen as allowing the courts and the executive to share the power of carrying out government business – with the executive taking the initiative, and the courts checking the executive where the executive goes too far, while being aware of the need to ‘defer’ to the executive’s expertise and experience in determining what counts as ‘too far’ in certain areas of sensitive government business. From this perspective, the fact that Parliament is controlled – to a large extent – by the executive (in the shape of the government) is not such a bad thing, as it allows for swift and decisive action in the face of economic crisis (contrast the British government’s rapid response to the economic crisis of 2008, nationalising some banks and bailing out others, with the American government’s, where the US economy almost collapsed because of Congress’ initial rejection of the executive’s ‘Troubled Asset Relief Program’), and allows legislation to be informed by the executive’s experience of what the public interest demands.

Formalities

What we are trying to explain

Section 53 of the Law of Property Act 1925 provides:

(1)(b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will;

(1)(c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by will.

(2) This section does not affect the creation or operation of resulting, implied or constructive trusts.

Fuller on formality

In his classic essay ‘Consideration and form’ (1941) 41 Columbia LR 799, Lon Fuller distinguished between three different functions that might be served by formality requirements:

(1) the evidential function, of providing evidence of a transaction that the parties intended to enter into;

(2) the cautionary function, of putting someone on notice that they are entering into a transaction, and encourage him to think about whether he wants to enter into that transaction;

(3) the channelling function, of providing a well-defined means of entering into a particular transaction.

Let’s see whether any of these functions can explain the operation of the formality requirements set out in s 53(1)(b) and s 53(1)(c).

Section 53(1)(b)

At first sight, s 53(1)(b) seems to perform a cautionary function – the idea being that it saves people from making ill-thought out and hasty declarations of trust over land that they own. However, the language of s 53(1)(b) (‘a declaration of trust respecting any land…must be manifested and proved…’) indicates that it performs an evidential function. But why? Bill Swadling has given us the answer in his essay ‘The nature of the trust in Rochefoucald v Boustead’ in Mitchell (ed), Constructive and Resulting Trusts (Hart, 2010). Section 53(1)(b) originates in the Statute of Frauds, and the requirement in the Statute of Frauds that a declaration of trust over land be evidenced in writing was designed to stop landowners being defrauded of their land by people falsely alleging ‘You said you held your land on trust for me!’ and persuading a court to believe their allegation. The requirement of writing for a declaration of trust put a stop to this practice: unless you could provide some writing in support of your claim that a landowner had declared that he held his land on trust for you, then your claim would fail immediately.

This has a very important implication, which is that s 53(1)(b) should only apply where a landowner is being sued on the basis that he has declared that he held his land on trust for the claimant. Where A conveys Blackacre to B on the basis that B will hold Blackacre on trust for A and then sues B to enforce the trust, the fact that they never put it in writing that B would hold Blackacre on trust for A should provide no obstacle to A’s claim. A’s claim is not that B declared that he would hold Blackacre on trust for A, but that he intended B to hold Blackacre on trust for him when he conveyed it to B. So the mischief at which s 53(1)(b) is targeted is not present here, and so there’s no reason to apply s 53(1)(b) to prevent A making out his claim. The caselaw acknowledges this point, with cases such as Rochefoucald v Boustead (1897) and Bannister v Bannister (1948) holding that in this kind of situation, B cannot rely on s 53(1)(b) to defeat A’s claim. As Bill Swadling points out, academic commentators get it wrong by saying that the trust on which B holds Blackacre for A is constructive. No: it is express, based on the court’s giving effect to A’s intention that B should hold Blackacre on trust for A.

What about the situation where A transfers Blackacre to B and C sues B, alleging that A transferred Blackacre to B on the basis that B would hold the land on trust for C? If C cannot produce any writing in support of his claim, should s 53(1)(b) operate to bar C’s claim? If A is dead, then it probably should – not applying s 53(1)(b) would leave B vulnerable to claims from all and sundry claiming ‘A told you to hold Blackacre on trust for me when he conveyed it to you.’ But if A is still alive and in a position to intervene when C sues B and say, ‘What are you talking about? I never said B should hold Blackacre on trust for you!’ then there seems no reason why B should be able to set up s 53(1)(b) in order to defeat C’s claim.

Section 53(1)(c)

Section 53(1)(c) is not phrased in a way which indicates that it performs an evidentiary function, but it is hard to see why beneficiaries need to be saved by a formality requirement from making ill-thought out and hasty transfers of their beneficial interests to others. So we should consider seriously the possibility that s 53(1)(c) performs an evidential function.

We have already seen that s 53(1)(b) exists to protect property owners being defrauded of their property, and it might be that s 53(1)(c) performs a similar function. If A holds money on trust for B, B might be vulnerable – in the absence of s 53(1)(c) – to being defrauded of his money by A, with A suddenly holding on trust for C, and when B objects, A says (with vehement support from C), ‘But you told me that you wanted me to hold the money on trust for C!?’

But it may be that s 53(1)(c) exists for the benefit of trustees, as well as beneficiaries. The idea is that if A holds property on trust for B and B orally instructs A to hold on trust for C, then if A follows B’s instructions and starts holding on trust for C, then A is vulnerable to being sued by B, with B arguing, ‘Why are you paying money to C? You hold on trust for me, not C!’ In such a situation, A will find it very difficult to defeat B’s claim – he did originally hold on trust for B, and he won’t have any writing to back up his claim that B told him to hold on trust for C, so a court could well hold him liable for wrongfully paying out money to C. Section 53(1)(c) saves A from any such embarrassment – when B orally instructs A to hold on trust for C, A can say to B, ‘You’ll need to put that writing: until you do, I will continue to hold on trust for you.’

One problem with this explanation of s 53(1)(c) is that if it is right, then it would have been desirable for Vandervell v IRC (1967) to be decided differently. Vandervell said that if A holds money on trust for B, and B orally instructs A to convey legal title to the money to C so that C will become the absolute, unencumbered legal owner of the money, then if A does transfer the money to C, C will become the absolute, unencumbered legal owner of the money. B won’t be able to invoke s 53(1)(c) and argue that because he never put anything in writing, his beneficial interest remains undisposed of, and C holds the money on trust for him. The decision is right in theory: B is attempting here to destroy his beneficial interest in the money, not dispose of it. (Note that when C receives the money she does not acquire a beneficial interest in the money – she just acquires legal title, and she gets to enjoy the money beneficially because no one else has a beneficial interest in the money.) But if our account of the basis of s 53(1)(c) is correct, the decision in Vandervell is objectionable in practice. The two reasons for this are: (1) If A holds money on trust for B, then the decision in Vandervell makes B vulnerable to A’s suddenly transferring the money to C, and then when B objects, A can claim (with C’s vehement support) that, ‘But you told me to transfer the money to C so that he would become the absolute legal owner of it!’ (2) If A holds money on trust for B, and B orally instructs A to transfer the money to C so that C will become the absolute legal owner of it, then A is vulnerable to being successfully sued by B if he follows B’s instructions: B can later turn round and say, ‘Why did you give the money you hold on trust for me to C? I’m suing you for wrongfully disposing of trust assets’ and A won’t be able to produce any writing to back up his argument that he was only doing what B told him to do.

In considering cases on the ambit of s 53(1)(c), you should also keep out your eye for the possibility that the courts in some cases might be interpreting s 53(1)(c) as performing a channelling function – in other words, they interpret s 53(1)(c) as saying that the only way to dispose of a beneficial interest in property to another is to do it in writing, where the written document conveying the beneficial interest can be subjected to stamp duty. On this view, s 53(1)(c) is all about tax raising – if you want to dispose of your beneficial interest in property to someone else, you can: but the only way of doing this is to do it in writing, at which point stamp duty will be payable on the document that has the effect of conveying your beneficial interest to someone else. And attempts to evade the effect of s 53(1)(c) are all about tax avoidance – trying to convey your beneficial interest in property to someone else without putting anything in writing that can then be subject to stamp duty.

Why consequences matter to the criminal law

The consequences of your actions matter to the criminal law in a couple of different respects:

(1) The law distinguishes between successful attempts and unsuccessful attempts, so that defendants who are guilty of a successful attempt are treated worse under the criminal law than defendants who are guilty of an unsuccessful attempt – when the difference between a successful and an unsuccessful attempt can just be a matter of luck.

(2) Crimes of constructive liability make a defendant who is already guilty of committing one criminal offence liable for a much more serious offence if his initial crime has certain consequences; and this is so even if the defendant did not intend or foresee that his initial crime would have those consequences. Examples of constructive liability in the criminal law are: (a) murder (where the defendant merely intended to cause gbh to his victim, but death resulted as well); (b) constructive manslaughter; (c) causing death while driving uninsured/disqualified/unlicensed; (d) maliciously inflicting gbh (where all that was foreseen was that the victim would suffer some kind physical harm); (e) assault occasioning actual bodily harm; (f) accomplice liability under the law on joint enterprise.

This post attempts to explain: (1) why the law might distinguish between successful and unsuccessful attempts; and (2) why the law might recognise crimes of constructive liability.

Successful and unsuccessful attempts

Contrast the following two cases:

Hit: Assassin trains his gun on Target, 500 yards away. Assassin pulls the trigger and Target is shot dead.

Miss: Assassin trains his gun on Target, 500 yards away. Assassin pulls the trigger but a sudden gust of wind means that the bullet just misses Target.

In Hit, Assassin will be guilty of murder and get a mandatory life sentence; in Miss, Assassin will only be guilty of attempted murder and won’t get a mandatory life sentence. Why the difference?

A lot of people think that the law should treat Assassin the same in both Hit and Miss as his intentions were exactly the same in both cases, and it’s just a matter of luck that Assassin killed his victim in Hit but not in Miss. I think what this view overlooks is that in both Hit and Miss, Assassin does two things wrong, not one. In both cases, Assassin tries to kill Target – and that’s wrong. But the other thing wrong that Assassin does is that he knowingly exposes Target to the risk of suffering bad luck, by being killed. When Assassin pulls the trigger, he makes it a matter of luck whether or not Target is killed, and he was aware that he was doing that.

So we need to punish Assassin both for (1) trying to kill Target and for (2) knowingly exposing Target to the risk of suffering bad luck. But how do we do this? My suggestion is that we punish Assassin for (1) through a fixed penalty (say, 15 years), and we punish Assassin for (2) through a conditional penalty which Assassin will incur if Target does end up suffering bad luck and is killed. This conditional penalty is a fitting penalty for the wrong committed by Assassin in knowingly exposing Target to the risk of suffering bad luck: if Target ends up suffering bad luck, then Assassin will also suffer bad luck by incurring the conditional penalty.

The result is that we end up punishing Assassin more in Hit than in Miss. In Hit, Assassin incurs both the fixed penalty and also the conditional penalty, as the bad luck that he knowingly exposed Target to the risk of suffering has materialised. But in Miss, Assassin only incurs the fixed penalty: Assassin shares in Target’s good luck – as Target is not killed, Assassin escapes the conditional penalty.

Constructive liability

Contrast the following two cases:

Scary: Man and Wife are driving home from a party, where Man caught Wife kissing another man. Man (who is driving) says to Wife, ‘When we get home, I’m going to beat you to an inch of your life.’ Wife is so scared by this threat that she jumps from the moving car and scars her knees.

Funny: Man and Wife are driving home from a party, where Man caught Wife kissing another man. Man (who is driving) says to Wife, ‘When we get home, I’m going to beat you to an inch of your life.’ Wife laughs and says ‘I’d like to see you try.’

In Scary, Man is guilty of assault occasioning actual bodily harm; while in Funny he is only guilty of an assault. And this is so even though Wife’s reaction to Man’s words may have just been a matter of luck. Why the difference?

We can’t use the ideas discussed in the previous section to explain the difference between Scary and Funny as Man may not have knowingly exposed Wife to the risk of suffering actual bodily harm in either case. (In Scary, he may have been completely astonished that his Wife would react to his threat by jumping from a moving car.) So we need a different idea to explain why the law treats these two cases differently.

We can draw on the idea of a moral threshold to explain why the law might treat Man more harshly in Scary than in Funny.  The idea is that Man crosses a moral (actually, legal – but ‘moral’ sounds better) threshold when he threatens Wife with a beating: he does something wrong. We don’t want him to do this. Now – how do we stop him from crossing that threshold? My suggestion is that by putting Man on notice that if his threat causes his Wife to suffer actual bodily harm, he will be subject to a more serious penalty than he would be if his Wife did not suffer any such harm, the law does two things to help encourage Man to stay the right side of the line of not threatening his Wife:

(1) The law makes Man uncertain as to what punishment he will receive if he crosses the moral threshold and threatens his Wife. He won’t know whether he will get the standard penalty for committing an assault, or a more serious penalty in the event that his assault results in his Wife suffers actual bodily harm. This uncertainty can be expected to deter Man from crossing the moral threshold of threatening his Wife as it makes it much harder for him to determine whether threatening his Wife would be ‘worth it’. (Note that there is no rule of law objection to placing Man in a position of uncertainty as to what punishment he will receive if he assaults his Wife, as Man could easily avoid the uncertainty by simply not assaulting his Wife.)

(2) If Man tries to calculate what the probability is that he will end up receiving a penalty for assault occasioning actual bodily harm, he will be forced to think about what the chances are that his assault will result in his Wife suffering actual bodily harm. In thinking about this, he may be brought to realise what effects his assaulting his Wife will have on her, and will come to the conclusion that given those effects, he should not assault his Wife and will voluntarily decide not to cross the threshold of assaulting his Wife.

So constructive liability may encourage people not to cross the moral thresholds to which constructive liability attaches by: (1) deterring them from crossing those thresholds by making them uncertain what liability they will incur if they cross that threshold; and (2) persuading them not to cross those thresholds by making them reflect on what the effects of crossing those thresholds will be.

The law on intoxication

The basic point

There is no such thing as a defence of intoxication under the criminal law. If you ever find yourself writing ‘D may be able to take advantage of a defence of intoxication’ you are doing something very, very wrong. You need to stop and think – why am I saying this?

Intoxication is only relevant to whether or not a defendant has committed a criminal offence if it means: (1) he did not commit the actus reus of the offence; or (2) he did not have the mens rea for the offence; or (3) he mistakenly believed in facts which, if true, would mean he had a defence to being found guilty of committing that offence. If none of (1), (2) or (3) apply, then the defendant is guilty – the fact that he acted in an intoxicated state will be completely irrelevant.

Kingston illustrates the point. Defendant’s drink was spiked, his inhibitions were consequently loosened, and he ended up sexually assaulting a boy. He knew what he was doing at the time and was in control of his body. He was found guilty: he had the actus reus of the offence (unconsented to touching of a sexual nature), he has the mens rea (intention to touch, or recklessness as to touching) and was not acting under a belief which, if true, would have given him a defence. The fact that the defendant would not have acted as he did had his drink not been spiked was irrelevant. He was still responsible for his actions. If I offered you a million pounds to kill your best friend, and you took the money and killed your best friend, you could not dream of trying to get off the charge by arguing, ‘Had I not been offered the money, I would never have killed my best friend.’ And yet people still try to argue that Kingston should have been acquitted. Whatever it was that caused you to loosen your inhibitions – money, drugs, drink, lust – if you are still responsible for your actions, you can still be held accountable for them under the criminal law.

Let’s now look at how the law handles cases when a defendant can argue that either (1), (2) or (3), above, apply.

No actus reus

In this sort of case, the effect of D’s intoxication either means that D had no idea what he was doing, or D was not in control of his body. In either case, D might be able to argue: I didn’t have the actus reus because I didn’t cause whatever harm it is that my body did while I was blacked out or had no control over my body’s physical movements. If this argument works, then D is entitled to be acquitted on the basis of non-insane automatism (not insane automatism, because the automatism had an external cause – the intoxication). But there is one exception. If D was responsible for his own intoxication then we can say (at least where the actus reus of the offence requires that it be shown that D caused a particular harm) that D did have the actus reus. By causing himself to get drunk, he was the ultimate cause of the harm that his body did while D was blacked out or not in control of his body’s physical movements. So we can contrast two cases:

Wild Thing 1. D gets so drunk in a pub that he ends up having convulsions. As he is flailing around, one of his fists hits a fellow drinker, V. In this case D has the actus reus of assault occasioning actual bodily harm (assuming that the hit did abh to V). D  ultimately caused his fist to touch V by getting so drunk that he went into convulsions, and this caused (we are supposing) V to suffer actual bodily harm.

Wild Thing 2. Same as Wild Thing 1 except D was drinking what he thought was orange juice, but it had been spiked by T. In this case, D does not have the actus reus for assault occasioning actual bodily harm because he did not cause his fist to hit V. T did that; so if anyone is going to be guilty of assault occasioning actual bodily harm, it should be T. But D is entitled to be acquitted here on the basis of non-insane automatism.

No mens rea

In this sort of case, the effect of D’s intoxication means that D can deny that he had the mens rea for the offence with which he has been charged. For example, if, say, he was charged with murder, D would be arguing – my intoxicated state means that I did not have an intent to kill or an intent to cause gbh. If, on the other hand, he was charged with malicious wounding, D would be arguing – I did not appreciate that there was an unreaonable risk that V would suffer some physical harm from my actions. Here are a couple of situations where D would be able to make such an argument:

Polar Bear. D gets blind drunk in a pub. As he walks outside the pub, alone, he sees what he thinks is a polar bear coming towards him. (In fact, it is V, dressed in a white parka.) Thinking that the polar bear’s head would look great on his wall, D grabs hold of what he thinks is the polar bear and cuts its head off with a handy knife. On sobering up, D is told that he decapitated V and is being charged with murder. D has the actus reus for murder: he caused V’s death by sawing V’s head off. But D will argue that he did not have the mens rea for murder when he was sawing V’s head off: he intended to kill a polar bear, not a human life in being.

Note that this argument would not work if D was getting blind drunk in order to get up the courage to go home and kill his wife. In such a case, we could dial back the moment when D caused V’s death to the moment when he was getting drunk in the pub, and say that that act of getting drunk caused V’s death because V would not have died had D not gotten blind drunk, and there was no obvious break in the chain of causation after the moment he got drunk to break the chain between the getting drunk and V’s dying. And at the moment D got drunk, he did have an intent to kill – he was getting drunk with the aim or purpose of killing his wife. So in that situation, D would not be able to deny that he had the mens rea for murder, contemporaneous with the actus reus, and would consequently be convicted of murder. This is known as the ‘Dutch courage rule’ (first articulated by Lord Denning in Attorney-General for Northern Ireland v Gallagher).

But let’s assume the ‘Dutch courage rule’ doesn’t apply in Polar Bear: D was getting drunk just for the hell of it. In such a case, D would argue that he should be acquitted because he did not have the mens rea for murder.

Darts. D gets blind drunk in a pub. He gets up, intending to have a game of darts. But he is so drunk, he thinks that the darts in his hand are actually little wriggling mice. He is so disgusted, he throws one of the ‘mice’ at a nearby drinker, V, shouting, ‘Look at this! That’s horrible!’ When D sobers up, he is told that V was actually struck in the eye by the dart that he threw at V, and that D is going to be charged with malicious wounding, contrary to s 20 of the Offences Against the Person Act 1861. D has the actus reus: what he did in throwing the ‘mouse’ at V caused V to be wounded. But D will argue that he did not have the mens rea: when he threw the ‘mouse’ at V, he did not foresee that V would suffer ‘some kind of physical harm’ as a result of his actions.

In cases where D seeks to rely on his own intoxicated state in order to deny that he had the mens rea of the offence with which he has been charged, a very simple rule (called the Majewski rule) applies to determine whether D can do this. In the case where D was to blame for getting drunk, the courts ask – Had D not been drunk, would he have had the mens rea for the offence with which he has been charged? If the answer is ‘yes’ then D will not be allowed to deny that he had the mens rea for the offence with which he has been charged. If the answer is ‘no’, then D will be allowed to persist in his plea that he did not have the mens rea for the offence with which he has been charged, and will be acquitted on the basis of no mens rea.

Let’s see how the Majewski rule would apply in our two situations:

Polar Bear. Here D’s drunken state means that he did not have the mens rea for murder, but he was also to blame for getting drunk, so we might prevent him denying that he had the mens rea for murder depending on the application of the Majewski rule. So we ask – Had D not been drunk, would he have had an intent to kill or an intent to cause gbh? The answer, pretty obviously, is ‘no’ so D is allowed to persist in his plea that he did not have the mens rea for murder and will be acquitted on the basis of no mens rea.

Darts. Here D’s drunken state means that he did not have the mens rea for malicious wounding, but he was also to blame for getting drunk, so we might prevent him denying that he had the mens rea for malicious wounding depending on the application of the Majewski rule. So we ask – Had D not been drunk, would he have foreseen that there was a risk of V suffering some kind of physical harm when he acted as he did? Well, had D not been drunk, he would have realised he was holding a dart, not a mouse, so he plainly would have foreseen that there was a risk of V suffering some kind of physical harm when he threw the dart at V. So the answer to our question is ‘yes’ and as a result D will not be allowed to deny that he had the mens rea for malicious wounding. As a result, D will be convicted of malicious wounding – he committed the actus reus, and is not allowed to deny that he had the mens rea, and will have no relevant defence.

The textbooks try to sum up the above by saying that a defendant who is charged with a criminal offence will – if he was to blame for getting drunk – be allowed to rely on his drunken state to deny that he had the mens rea for the offence if the offence was one of ‘specific intent’ (= mens rea requires an intent to produce a particular outcome), but not if the offence was one of ‘basic intent’ (= mens rea can be established merely by showing that the defendant foresaw that his actions would have a particular outcome). But this is dangerously vague. It would be better just to ask, in a case where the defendant seeks to rely on his drunken state to establish that he did not have the mens rea for the offence with which he has been charged, and the defendant was to blame for getting drunk, the Majewski question: Would the defendant have had the mens rea had he not been drunk? Answering that question will allow you to determine whether or not the defendant will be allowed to deny that he had the mens rea without having to worry about whether the offence that the defendant has been charged with is one of ‘specific intent’ or ‘basic intent’.

Mistaken belief in defence

In this sort of case, D’s intoxicated state means that he believed facts were true, that if they were true would have given him a defence, such as self-defence, or duress. Examples:

Banana Man. D is high on LSD. In his drunken state, he believes V is running towards him with a knife, and is about to stab him. D takes out a gun and shoots V dead. In fact, V was not holding a knife but a banana, which he was urging D to eat.

Down at Heel. D is in the pub with V. V is telling D about his financial problems, and says to D, ‘You’ll take care of me, won’t you? You’d really regret it if you didn’t.’ D is pretty drunk and misinterprets V as threatening that he will kill D unless D immediately gives him money. D pulls out a gun and holds up the pub, netting £2,000, which he instantly hands over to an astonished V.

In these cases, the courts ask a very simple question – Was D to blame for his intoxicated state? If he was, then he will not be allowed to rely on his mistaken belief to argue that he has a defence. But if he was not to blame for being intoxicated, and if the facts that D’s intoxicated state led him to believe were true would – if true – have given him a defence, then D will be allowed to raise that defence to the offence with which he has been charged.

So if, in Banana Man, someone had slipped D a tab of LSD without his realising it, and shooting V would have been a reasonable thing to do had V actually been about to knife D, then D will be acquitted of murder on the ground of self-defence. (Note that in Banana Man, the fact that D had the actus reus and mens rea for murder is easily established.) But if in Banana Man, D had taken the LSD, he will not be allowed to rely on his mistaken belief to argue that he should be acquitted on the ground of self-defence. (Note that this is an exception to the normal approach, established in Gladstone Williams, that a defendant will be entitled to raise a defence of self-defence so long as he honestly believed in facts that, if true, would have given him a defence of self-defence.)

The same is true in Down at Heel. If D was to blame for getting drunk, he will not be allowed to rely on a defence of duress when he is charged with theft. But if someone had been spiking his orange juice, he will be allowed to rely on his mistaken belief that V was threatening to kill him to set up a defence of duress. (This is assuming that on the facts that he believed to be true he would have had a defence of duress.)

The one case where a defendant who was to blame for getting drunk will still be allowed to rely on a mistaken belief in facts which, if true, would have given her a defence was established in Jaggard v Dickinson. Under s 5(2) of the Criminal Damage Act 1971, it is a defence to being convicted of causing criminal damage to property belonging to another if you believed the owner of the property would have consented to the damage. The defendant, in a drunken state that she was to blame for getting into, attempted to break into her friend’s house believing that her friend would be happy for her to do this. In fact, she had got the wrong house and was breaking down someone else’s door. She was acquitted of criminal damage to property on the basis that she honestly believed that the owner of the door would have been happy for her to break down the door. This was so even though the only reason she thought this was because she was drunk, and she was to blame for getting drunk.

Criticisms of the law

The law on intoxication is sometimes criticised on the basis that –

(1) It is unclear.

(2) It does not provide a defence to someone like the defendant in Kingston.

I don’t think either of these criticisms are justified. The law is pretty clear (as you can see from my summary above), and there is no way the law should be acquitting the defendant in Kingston. But this does not mean that the law in this area is beyond criticism. Two criticisms can be made:

(3) In Darts we end up convicting the defendant of a very serious offence – malicious wounding – simply on the basis that he was to blame for getting drunk. This does not seem right. If the defendant, when he got drunk, did not foresee the risk of other people coming to some physical harm as a result, he is being found guilty of an offence for which such foresight is required when he had no such foresight. He is being found guilty because he is prevented, under the Majewski rule, from denying that he had such foresight. Convicting someone on the basis of a fiction seems very unsatisfactory. It looks like the defendant in Darts is being convicted on a constructive basis – he did something bad when he got drunk, and then the offence he ends up being convicted of depends on the level of harm that resulted from his getting drunk without any requirement that he needs to have foreseen that harm.

(4) The workings of the above rules seems to produce some arbitrary results. Consider:

Tramp 1. Two tramps, Vladimir and Estragon, get very drunk and take a lot of drugs and fall asleep near each other. Vladimir wakes up, still intoxicated, and thinks that the sleeping Estragon beside him is a writhing mass of snakes that are about to attack him. Vladimir panics, pours the remaining alcohol near him onto Estragon and sets it on fire. Estragon dies. Vladimir is charged with murder but is acquitted on the basis that he lacked the mens rea for murder: he did not have an intent to kill a life in being. See R v Lipman.

Tramp 2. The same facts as Tramp 1, but in this case when Vladimir wakes up, he wrongly thinks that Estragon is attacking him with a knife. Vladimir strangles Estragon. Vladimir is charged with murder and is convicted on the basis that he had the actus reus for murder (he caused Estragon’s death), and the mens rea for murder (he intended to kill Estragon), and he can’t rely on his mistaken belief that he thought that Estragon was attacking him because that mistaken belief was the result of his intoxicated state, and he was to blame for being intoxicated. See R v O’Grady; R v Hatton.

But what, morally, is the difference between Tramp 1 and Tramp 2 that would justify us in acquitting Tramp 1 of murder, and finding Tramp 2 guilty? The treatment of Tramp 2 looks even more arbitrary given the fact that under Gladstone Williams a non-intoxicated but still stupid belief that one is about to be attacked might entitle a defendant to be acquitted of murder.