Is Law Fair?

On the whole it is, although some peculiar situations come up sometimes, and I am going to recount three of them to you!

R v Collins [1972] 2 All ER 1105 

One summer’s evening, a Friday in 1972, a 19-year-old, blond, good-looking chap had been out on his own to a local pub in Colchester, Essex. Little did he know, as he downed several pints of beer, that before the night was out he would become the lead player in a case that subsequently went from the Essex Assizes, where he was convicted of burglary with intent to commit rape contrary to s.9 (1)(a) of the Theft Act 1968, to the Court of Appeal Criminal Division where his conviction was quashed (R v Collins [1972] 2 All ER 1105). The Assize Courts, by the way, were disbanded at the end of 1972 by The Courts Act 1971 and replaced by the Crown Court.

The current TV show TOWIE was not even dreamt of in 1972, but who knows, perhaps the germ of the idea was conceived with this case. It will give you some idea of the flavour of this little story when I tell you that on opening their Judgment in the Court of Appeal, the presiding judge, Lord Justice Edmund Davies (supported by Lord Justice Stephenson and Mr Justice Boreham), said this: “This is about as extraordinary a case as my brethren and I have ever heard either on the bench or while at the bar. Let me relate the facts. Were they put into a novel or portrayed on the stage, they would be regarded as being so improbable as to be unworthy of serious consideration and as verging at times on farce …” Not a bad description of the TOWIE to come, is it?!

The name of the ‘lead player’ of this little drama was Stephen William George Collins, who worked for a small firm of building contractors. Whilst working on a job, he noticed a particularly attractive girl going to and from a house near where he was working. We don’t know her name (she is referred to only as ‘the complainant’ in the trial transcripts, but we do know that she was 18 years old), but as she plays such a prominent and unusual role in this little saga, let’s call her ‘Mary’.

Unfortunately young Stephen (undoubtedly known as ‘Steve’ to his friends) was not very good at managing his drinking, and so, as the evening wore on, he became more and more inebriated. Not blind drunk, I should add, but undoubtedly the worse for wear. We can only imagine, from what subsequently transpired, that whilst he was sitting in the pub, on his own, with his empty beer bottles around him, his thoughts strayed to ‘Mary’. Not only did they stray, however, they started to converge on one thought, and one lustful thought only, and that was the desire to have sexual intercourse. According to the police evidence (which, to be fair, was disputed at his trial), he had stated that he was determined to have a girl, by force if necessary. Who better, thought he, than Mary because he knew where she lived and perhaps he could catch her coming home. So when the pub closed, off Stephen went to try and fulfil his lustful mood.

So the scene is set: We don’t know exactly where Stephen went on leaving the pub, but we do know that at about 2 o’clock on Saturday morning, Mary, who had spent the evening with her boyfriend (she had also had a certain amount to drink over the evening), went to bed, au naturel (which was her wont), in her bedroom, which was at the rear of her house. The bedroom was not over-large, and her bed was quite near the window, which (because it was a warm night) was wide open. Around 3.30 to 4.00 am, Stephen arrived at the house, and walking around it, saw the open window and (according to his evidence) ‘knew that it was her bedroom’. Very conveniently there was a ladder in the back garden, so he leaned it against the wall and climbed up, peered in the open window and saw Mary lying naked on the bed fast asleep. Down he climbs and takes off all his clothes except for his socks (thinking that if he were caught, it would be easier to make a run for it if he had his socks on!!).

Here we have a slight puzzle. In the legal profession, R v Collins is referred to as “the green socks case”. I have read the transcripts of the cases – both at the Assizes and the Court of Appeal – and nowhere is the colour of Stephen’s socks mentioned! But I digress.

Dressed only in his socks (green or otherwise), Stephen climbs the ladder again and pulls himself up onto the window sill. As he was doing this, Mary Mary wakes up and sees Stephen silhouetted in the window by the strong moonlight behind him. She is conscious of four things – that the form in the window was male, that he had blond hair, that he was naked and that he was, sexually, very aroused! As her boyfriend was also blond, she leapt to the conclusion that her boyfriend (with whom she had been on terms of regular and frequent intimacy) was paying her an amorous, if not ardent, nocturnal visit. So she sat up in bed, put her arms around Stephen’s neck and pulled him into bed where they had sexual intercourse! In the words of Stephen, when giving evidence at his trial at Essex Assizes: “I was rather dazed as I did not think that she would want to know me. We kissed and cuddled for about 10 or 15 minutes and then I had it away with her, but found it hard as I had had so much to drink.”

After they had “had it away” (as Stephen put it), Mary lay thinking that there was something about Stephen which made her believe that things were not as they usually were between her and her boyfriend – the length of his hair for one thing, his voice for another and he didn’t smell the same! So, she put the bedside light on, saw that he was not her boyfriend, slapped Stephen’s face and ran into the bathroom, whereupon Steven scarpered back down the ladder. I hope he put his clothes back on before he ran home through the streets, but the trial transcripts don’t tell us.

At the Essex Assizes, Stephen was charged with burglary with intent, under s.9(1)(a) of the Theft Act 1968, which provides:

“A person is guilty of burglary if (a) he enters any building as a trespasser with intent to commit rape” [‘entering as a trespasser’ means that he entered the premises without permission].

For this crime, the jury found him guilty, and he was sentenced to two years imprisonment (the maximum sentence for this offence is 14 years). He appealed to the Court of Criminal Appeal on two grounds: (i) that he hadn’t actually entered the bedroom at the time that Mary grabbed him and pulled him in (he was only on the window sill); and (ii) because she pulled him in, he was not a trespasser – he was there with her consent! Fortunately for Stephen, the Court of Criminal Appeal found that the trial judge at the Essex Assizes had not fully advised the jury on the question of whether or not Stephen had, in fact, entered as a trespasser (i.e., either knowing perfectly well that he had no invitation to enter or, being reckless as to whether or not his entry was with permission, he entered nevertheless and, in addition, whether he was actually in the room or not when Mary pulled him onto the bed). On that basis they found his conviction was unsafe and quashed it! You may feel that it was blindingly obvious that he was ‘invited in by mistake’, but who knows what the jury may have decided had they been properly advised.

Lewis v Averay [1972] 1 Q.B. 198

The next case I’m going to mention is one which some of you may have come across if you have studied the law of contract in any detail. 

Mr Keith Lewis, a postgraduate chemistry student from Clifton, Bristol, advertised for sale in the local newspaper his Austin Mini Cooper ‘S’ for the sum of £450. A few days later he had a telephone call from someone who was interested in buying it. The caller didn’t give his name over the telephone but said that he was speaking from Wales; it was arranged that he would call round that evening to have a look at the car, which he duly did. After viewing and test-driving the car he said that he liked it, and so they went back to Mr Lewis’ flat to clinch the deal. Mr Lewis’ fiancée was there and during conversation the buyer told them he was Richard Green and talked a lot about the film world.

Now the name ‘Richard Green’ may not mean much to any of you reading this, but in the late 1950s and the 1960s he was a very popular film and television star. One of his most successful television series was “Robin Hood” which ran for 143 episodes over a four-year period, and its signature tune/song was whistled by multitudes throughout the country. I can even remember the tune and the words myself, even after all these years! “Robin Hood, Robin Hood, riding through the glen; Robin Hood, Robin Hood with his band of men; feared by the bad, loved by the good, Robin Hood, Robin Hood, Robin Hood.” If this were a video instead of an article, I’d even whistle it for you!

Richard Green as Robin Hood in the TV series.

So … Mr Green (if indeed that was his name) led Mr Lewis (and his fiancée) to believe that he was the Richard Green – the scourge of the wicked King John, the Sheriff of Nottingham and all the rich baddies in between. So ‘Mr Green’ agreed to buy the car for the asking price and wrote out a cheque to Mr Lewis for £450. He wanted to take the car at once and drive back to Wales in it, but Mr Lewis wasn’t willing to let him do that until the cheque was cleared. ‘Green’ said that he didn’t want to have to come all the way back to collect the car, so Lewis asked him whether he had any proof of who he was. Whereupon Green produced a ‘special’ pass of admission to Pinewood Studios (in those days, one of the leading British film and television studios) which had an official-looking stamp on it, and Green’s name and address together with a photograph. With this Mr Lewis was satisfied and thought that the man really was Richard Green, the film actor. By this time it was 11 o’clock at night. Lewis took the cheque and let Green have the car and the logbook and MOT certificate.

Yes, you’ve guessed it! A few days later, he was informed by his bank that the cheque had bounced. During this time, the rogue ‘Green’, claiming to be Mr Lewis, had sold the car to a Mr A.J. Averay – a 21-year-old music student at the Royal College of Music in London and living in Bromley – for the sum of £200. ‘Green’ then disappeared. The police subsequently tried to trace him, but they had no success. Two weeks later Mr Averay wrote to Mr Lewis (whose name and address were in the logbook) asking whether he had a workshop manual for the car. It was then that the whole sorry story came to light.

Naturally, Mr Lewis thought that because a fraud had been perpetrated against him, the contract was a sham, and so he wanted the car back from Mr Averay. On the other hand Mr Averay bought the car in good faith and paid good money for it, so he refused to give the car back to Mr Lewis. Stalemate? Not really, because Mr Lewis sued Mr Averay for the return of the car and/or damages for conversion.

The case was heard in the Bromley County Court (because this, of course, was the court in the district where the defendant resided) before Deputy Judge Ellison who gave Judgment in favour of Mr Lewis, finding that there was no contract between Lewis and ‘Green’ (the rogue) and awarding damages in the sum of £330 for conversion. Mr Averay applied for legal aid to appeal but was refused it. Being a member of the AA (Automobile Association), he contacted them and found that his membership would cover him for the cost of making an appeal, so he appealed to the Court of Appeal Civil Division, and it came up for hearing on the 22nd July 1971 before Lord Denning (Master of the Rolls) and Lords Justices Phillimore and Megaw.

The court unanimously allowed the appeal, basing its decision upon whether the identity of one party to the contract, when it is made face to face (and not at a distance, i.e. through the post), was an essential ingredient of the contract so as to make the contract void through mistake (i.e. lacking in consensus ad idem), or whether the contract was voidable (at the discretion of the aggrieved party) through misrepresentation (fraudulent or otherwise). The court followed a case decided in 1919 (Phillips v Brooks [1919] 2 KB 243). This case had decided that the fact that one party in a contract made ‘face to face’ is mistaken as to the identity of the other does not mean that there is no contract – i.e. that the agreement is null and void ab initio (‘from the beginning’). It only means that the contract is voidable at the instigation of the aggrieved party (should s/he so wish) through misrepresentation (instead of mistake), and we all know (don’t we?) that a voidable contract is a full, valid and binding contract up to and until it is so voided.  

So … the situation here is that the Court of Appeal found that Green’s fraudulent use of a wrong name when he entered into a contract with Lewis did not mean that the contract was void through mistake (the mistaken belief by Lewis that ‘Green’ was Richard Green, the actor), but that ‘Green’ fraudulently misrepresented himself as being the famous actor, and so the contract was voidable only under the Misrepresentation Act 1967. So … I hear you saying: What is the difference? Well – if the contract was void, it was void from the very beginning – no contract! If there was no contract, the title to the car had not passed to ‘Green’ and it, therefore, still belonged to Lewis. Thus Averay would have to give it back. If on the other hand it was voidable through misrepresentation, then it was a perfectly valid contract until such time as Lewis rescinded it. Lewis did not rescind the contract until he found out that the cheque he had been given had bounced. By the time that happened, ‘Green’ had sold the car on to Averay. The effect of this is that the innocent third party (Averay) had purchased the car from ‘Green’ in good faith before the contract was voided by Lewis and thus Averay had acquired good title to the car. (This, by the way, is now enshrined in Statute under s.22 of the Sale of Goods Act 1979.)

Now, who do you think should have won the day? Should Lewis have lost his car and the price that he ostensibly sold it for – ending up with nothing – or should the loss have been that of Avery’s (i.e. losing the car and the money that he paid to ‘Green’ for it)? Someone had to win and someone had to lose. In neither case could it be said to be a just judgment, but they both couldn’t win. The law had to decide, and upon binding precedent, it came down in favour of Averay. Poor old Lewis!!

Elliott v ‘C’ (a minor) [1983] [1983] 1 W.L.R. 939 & (1983) 77 Cr. App. R. 103

I am ending up with another criminal law case, the effect of which (at the time) was hardly believable! Luckily, however, the law was subsequently changed, as we shall see.

There is a legal maxim which goes to the heart of the criminal law in this country: ‘Actus reus non facit reum, nisi mens sit rea.’ which means 'An act does not make a person guilty (of a crime) unless the mind is guilty’.

Most crimes, therefore, have two elements to them: (i) a criminal action (i.e. the commission of an act which the law provides constitutes a criminal act) and this is called the actus reus (Latin: ‘a guilty act’ pronounced ‘actus ray-us’) and (ii) an intention on the part of the accused to commit the criminal act which is called the mens rea (Latin: ‘guilty mind’ pronounced ‘mens ray-er’). In the majority of crimes, therefore, both these elements must be present (and present at the same time) and so proved by the prosecution to secure a conviction. Let me give you an example: Attorney General for Northern Ireland v Gallagher [1963]. In this case, Gallagher, having decided to kill his wife, bought a knife and a bottle of whisky. The knife was to kill his wife and the whisky was to give him the courage to do it. However, he drunk so much whisky that he became extremely intoxicated – so much so that when he actually killed his wife, he did not know what he was doing. His defence was that, although he wanted to kill his wife, at the time when he actually did so he was incapable of forming the necessary intent (i.e. he did not have the necessary mens rea) to know what he was doing. In the first instance he was convicted of murder, but this was quashed on appeal on the grounds that at the time he actually killed his wife, he did not have the necessary intent to do so. Sounds crazy? Well, there you go!

However, it’s not quite as simple as that. Say that I set fire to a house with the intent of scaring the occupier. The fire gets out of hand, and the occupier is burned to death. Can I get off a charge of murder or manslaughter because my intent was not to kill, only to scare? The short answer is no, I can’t, because in criminal law there is such a thing as implied intent (this is often referred to as ‘oblique intent’ or 'foresight of consequences’). The law will imply the necessary intent according to the nature of the act. The whole concept of implied intent is, perhaps, the most difficult part of criminal law to come to grips with, and so I will skip over most of it and just briefly deal with that part that covers recklessness. What is recklessness? Well, it’s “the taking of an unjustifiable risk” and was defined by Lord Diplock in R v Lawrence [1982] as: “Giving no thought to the possibility of there being a risk, or, having realised that there was such a risk, nevertheless going on to do it.”

That’s simple enough, but what is the test for this? Is it a subjective test (i.e. did the accused actually have to have no concept that there was a risk) or is it an objective test (i.e. would a reasonable person have had no concept that there was a risk)? Well, the 1957 case of R v Cunningham (which was a Court of Appeal case) decided that the test should be a subjective test (i.e. whether the accused himself considered that the action carried a risk that the offence may be committed). So ... that was the position until 1982 when the House of Lords came to consider the case of The Commissioner of the Police for the Metropolis (MPC) v Caldwell [1982]. They reconsidered the scope of the test and changed it. They decided that a different test should be applied and that this test was to be both subjective and objective. First, a subjective test: was the accused aware of the risk but continued regardless? If so, then he had the necessary intent for the act that ultimately happened. Second, an objective test: where the accused had given no regard or thought to a possible risk (i.e. was not aware of the risk) before acting, then the defendant will be judged on the basis of whether a ‘reasonable’ man/woman would have been aware of the risk.

Again, this seems relatively simple. If he recognised the risk but went ahead anyway: guilty. If he didn’t recognise the risk, but a reasonable man would have done so: also guilty. However, as it transpired, it was not so relatively simple at all!

On 7 June 7 1982, at Whitstable in Kent, a Mr Davies left his home to visit his sister. At the bottom of his garden was a large wooden shed, in good condition, which contained tools, paints, white spirit and the usual things a garden shed collects. With the contents, the shed was valued at some £3,206, but when Mr Davies returned two weeks later, he found the shed completely burnt down. On June the 16th, a juvenile schoolgirl aged 14 years and known to us only as ‘C’ (for as she was a juvenile, her name was not disclosed in court) was arrested, having been identified by the local milkman who had seen her at 5.40 am, whilst on his rounds, in the vicinity of the house just before he saw the shed fire and raised the alarm. The police arrested her at 8 am at her home, on suspicion of arson and two offenses of burglary. She was, and this is important, a child with learning difficulties and was in a remedial class at her school. 

During the course of questioning by the police, she admitted the offences. She had been out with a friend, aged 16, the previous evening, hoping to spend the night with her, but her friend wouldn’t let her. She didn’t return home, but stayed out all night, spending most of the time in a garden. At about 5 am she found Mr Davies’ shed. She was cold, and, looking around the inside of the shed, she found a bottle of white spirit. Thinking that if she lit a fire it would keep her warm, she poured the white spirit onto the carpet on the shed floor and set it alight with a match. The spirit flared up out of control, and so she quickly ran out – that’s when she was seen by the milkman. On the 17th August 1982, an information was laid before the Magistrates against the defendant, on behalf of the prosecutor, Norman Elliot, that she “without lawful excuse destroyed by fire a shed and contents valued together at £3,206, belonging to Walter Davies, intending to destroy such property or, being reckless as to whether such property would be destroyed, contrary to s.1(1) of the Criminal Damage Act 1971”.

Her trial took place at the Canterbury Juvenile Court on the 28th September, and the Justices found the case not proved on the basis that they found that the defendant had given no thought to the possibility of the risk that the shed and contents would be destroyed and that, even if she had given thought to the matter, because of her sub normality, the risk would not have been obvious to her. On that basis they held that she had not acted recklessly and they dismissed the case. The right conclusion, you will think – yes?

No! Not so the prosecution! The prosecutor appealed, by way of Case Stated, to the Divisional Court of the Queen’s Bench Division of the High Court on the basis that the Kent Justices were wrong in law in view of the test for recklessness laid down by the House of Lords in the Caldwell case. If you remember what I wrote above, the Caldwell test was an objective test. The defendant had given no regard or thought to a possible risk (i.e. was not aware of the risk) before acting; therefore, then she will be judged on the basis of whether a ‘reasonable’ man/woman would have been aware of the risk. That was the law – straight from the House of Lords – and in this instance the law was an ass because the defendant here was not, of course, a ‘reasonable’ ‘ordinary’ person. She was a child, to begin with, but not just a child; she was a child with learning difficulties who was in a remedial class at her school. 

The appeal was heard by Lord Justice Goff and Mr Justice Glidewell, but their hands were tied. The House of Lords had set the test in Caldwell, and they had to follow it! They allowed the appeal by the prosecutor, and the case was remitted back to the Juvenile Court for sentencing. Unfortunately, I cannot tell you whether the Justices were lenient, as the sentence passed would not have been recorded, but I am sure that they were. What I can tell you, however, is that the law was ultimately changed some 20 years later (as the saying goes, “better late than never”!) in the House of Lords’ decision in R v Gemmell & Richards [2003] UKHL 50, which was decided in October of that year; they scrapped the Caldwell test and replaced it with a new test: “Was the accused aware of the risk and then continued regardless? If so, he/she had the necessary intent for the act that ultimately happened.” Applied to young Miss ‘C’ in the shed fire case, there would have been no appeal – she would have been rightfully acquitted in the juvenile court.