There is a secret society of Witches in every country,” said my grandmother. “An English witch will know all the other witches in England. They swap deadly recipes. Goodness knows what else they talk about. I hate to think.
Many people think that Helen Duncan was a witch and the last witch to be convicted in the UK. Both of these facts are wrong. She wasn’t a witch because by time of her crimes the Witchcraft Act of 1735 no longer recognised witches as real, and she wasn’t the last person to be convicted under the Witchcraft Act either: Jane Yorke was.
Today the idea of witchcraft sounds like superstitious nonsense but in the Sixteenth Century people commonly ascribed bad events, such as the death of a child or a bad harvest, to witchcraft and evil spirits. So, in 1542, while Henry VIII reigned, Parliament passed the first Witchcraft Act, which criminalised witchcraft and made it punishable by death, which in those days meant burning at the stake. The 1542 Act said that it was a crime to,
“… use devise practise or exercise, or cause to be devysed practised or exercised, any Invovacons or cojuracons of Sprites witchecraftes enchauntementes or sorceries to thentent to fynde money or treasure or to waste consume or destroy any persone in his bodie membres, or to pvoke any persone to unlawfull love, or for any other unlawfull intente or purpose … or for dispite of Cryste, or for lucre of money, dygge up or pull downe any Crosse or Crosses or by such Invovacons or cojuracons of Sprites witchecraftes enchauntementes or sorceries or any of them take upon them to tell or declare where goodes stollen or lost shall become”
The 1542 Act lasted just five years before it was repealed; however, it made a comeback early in Elizabeth I’s reign as the Witchcraft Act 1563. The 1563 Act was slightly more liberal in only calling for the death penalty in cases where somebody had been harmed by the actions of the witch; such an offence was a felony, which meant that such offences fell under the jurisdiction of the common law courts rather than the ecclesiastical courts that had tried Henry VIII’s offences.
Four decades later, James I was a king so intrigued by demons that he wrote and published a book on demonology. So, it will come as no surprise that during the first full year of his reign a third Witchcraft Act was passed. By now minor offences were punished by a year in prison, although a second offence meant death by hanging. In previous periods, witches were executed by burning but under the Witchcraft Act 1604 burning was reserved only for offences that were also acts of petty treason, essentially an aggravated form of murder involving the betrayal of a superior, e.g. a wife killing her husband, a clergyman his prelate or a servant his master or mistress.
The Acts passed under Henry VIII, Elizabeth I and James I all had one thing in common: they all assume that witches are real and by inference witchcraft, magic, conjuring and evil spirits are also all real. The last execution for witchcraft took place in Devon in 1685 while the last trials for witchcraft were in Leicester in 1717.
Attitudes had changed so much by the reign of George II that when a new Witchcraft Bill was introduced to Parliament it was met by laughter from MPs in the chamber. The Witchcraft Act 1735 stands out from its predecessor Acts because it starts from the position that witchcraft is impossible. Instead it criminalised pretending to be a witch and repealed all laws outlawing witchcraft itself. The new law defined the crimes thus:
“… if any Person shall, from and after the said Twenty-fourth Day of June, pretend to exercise or use any kind of Witchcraft, Sorcery, Inchantment, or Conjuration, or undertake to tell Fortunes, or pretend, from his or her Skill or Knowledge in any occult or crafty Science, to discover where or in what manner any Goods or Chattels, supposed to have been stolen or lost, may be found…”
Section 4 of the 1735 Act imposes a one-year prison sentence following conviction on indictment. During that year offenders were to be taken once a quarter to town on market day and made to stand in the pillory for one hour where they could be seen by everyone passing by. Where a court felt a person was likely to reoffend they could demand sureties be taken to ensure future good conduct and had the power to hold the offender in prison until suitable sureties were found.
209-years later, George VI sat on the throne, World War 2 was in its final stages in Europe and Helen Duncan was a successful medium earning a good living holding séances in Portsmouth. She had a previous conviction for a similar offence committed in Scotland in the 1930s. Ms Duncan was by all accounts a popular medium known for séances in which spirits would appear along with ectoplasm! The problem for Ms Duncan was that she was, of course, a fraud. Photographs showed that the spirits were puppets and scientific analysis showed the ectoplasm to be egg whites mixed with chemicals, swallowed before the show and regurgitated during each performance.
Ms Duncan caught the attention of the Royal Navy when in 1941 she claimed the spirit of a deceased sailor from HMS Barham, a Queen Elizabeth class battleship, had come to her to report that his ship had been sunk killing 862 men. The news of the sinking was not made public until 1942; however, the information had been leaked and relatives of those onboard were informed so it is likely that Ms Duncan heard the news from one of them. In 1944, two Navy lieutenants attended a séance and left so disgusted by what they saw that Lieutenant Worth made a complaint to the police. Initially arrested under section 4 of the Vagrancy Act 1824 but was eventually tried under the Witchcraft Act 1735, which carried a heavier penalty.
Ms Duncan contested her trial on the basis that it was only an offence to be a false medium, Ms Duncan argued that she was not guilty as her powers were real. The trial judge barred Ms Duncan from demonstrating her abilities in the courtroom to the jury who quickly convicted her of a single count under the Witchcraft Act 1735. She was sentenced to nine-months imprisonment. The case caused Winston Churchill, then Prime Minister, to write to the Home Secretary complaining that court resources were being wasted on “obsolete tomfoolery”.
Many think that there ends the history of trials under the Witchcraft Acts in England but there was one more case to be heard: Jane Yorke. Ms Yorke was a 72-year-old woman who claimed to have a spirit guide who many people claim was a Zulu, although Ms Yorke herself did not use that term. Ms Yorke did not charge for séances, but participants were invited to make a cash donation should they wish to do so. Unfortunately, for Ms Yorke an allegation must have been made that she was a fraudulent medium because undercover police officers attended a séance and were told elaborate details about non-existent family members, e.g. a brother who had burned alive during a bombing raid. Tried at the Old Bailey in September 1944 Ms Yorke was convicted of seven counts under the 1735 Act. She was luckier than Ms Duncan and was sentenced to a fine of £5 and made to give an undertaking that she would conduct no more séances.
Ms Yorke was the last person in British history to be convicted under the Witchcraft Acts; the 1735 Act was finally repealed by the Fraudulent Mediums Act 1951 after 216-years on the statute books. The 1951 Act in turn was repealed by Schedule 4 of The Consumer Protection from Unfair Trading Regulations 2008, which gave effect to an EU directive designed to protect consumers from unfair sales and marketing practices.
Today we think of witchcraft trials as being things of ancient history but Ms Duncan and Ms Yorke’s cases remind us that the Witchcraft Acts survived into modern living memory, even if they were no longer focused on finding actual witches.
Having been charged in 1961 with the felony offence (which in the US means a crime that attracts a sentence of more than a year imprisonment or death) of breaking and entering a pool hall with intent to commit larceny in Panama City, Florida, Clarence Gideon appeared in court for trial and duly asked the judge to appoint a lawyer to represent him. The judge refused, Mr Gideon was convicted and sentenced to five years imprisonment. So sets the scene for what would become a case that would eventually strengthen the rights of citizens facing trial not just in Florida but across the entire USA.
To modern ears (well those outside of the British Parliament and Legal Aid Agency) the idea that somebody facing prison should be denied the right to a lawyer is an anathema. It may also be a surprise given that Constitution says in the Sixth Amendment that, “[i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed… And to have the Assistance of Counsel for his defence.” Originally the protections in the Bill of Rights applied only to the Federal government; however, the Fourteenth Amendment requires States to observe and obey those protections as well. It states that, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” That phrase “due process” could be taken to mean that if a person is entitled to representation under the Sixth Amendment then breaching that right also means that the trial has not been conducted in accordance with the Fourteenth Amendment.
Let’s look at that line in the Sixth Amendment, “have the Assistance of Counsel for his defence”, which would seem to suggest that the judge had breached Mr Gideon’s Constitutional rights; however, that’s not how the Sixth Amendment was understood in 1961. You see in 1942 the US Supremes (I assume that’s how American lawyers refer to their Supreme Court Justices) had heard the case of Betts v Brady 316 US 455 (1942), which turned on an identical point namely whether a person who could not afford a lawyer had the right to have one appointed. Betts held that the Sixth Amendment provided no right to have a lawyer appointed in state courts for felony offences except where you faced a sentence of death. Justice Owen Roberts gave the majority judgment, which held that the right to counsel merely prevented the state from interfering in a defendant’s request for representation rather than requiring a state to offer counsel. In other words, a court cannot stop you having a lawyer but the State government is under no obligation to provide one for you to meet its obligations under the US Constitution.
That view makes some sense if you remember that when the Bill of Rights was ratified in 1791 there was no right to a defence lawyer in most criminal trials in England and Wales – William Hawkins, a jurist, writing in 1721 encapsulated the view that criminal defence “… requires no manner of skill to make a plain and honest defence which is always the best…” (well that’s me out of a job then I guess). Indeed the Supreme Court considered the laws of the thirteen original states at the time the Bill of Rights was ratified and noted that each state had its own rule on the appointment of Counsel, which may have suggested that the original framers of the Constitution did not intend the Sixth Amendment to impose an obligation on states to provide free lawyers for their citizens. At the heart of Betts is a uniquely American legal tussle that many English lawyers like myself struggle to understand as between the rights of the individual States to pass laws governing themselves and the rights of the Federal government to make laws binding the States – at first glance some may see some similarities between the UK and EU relationship but my impression is that the US version runs far deeper than ours.
You can always tell a bad legal rule because it breeds exceptions and by the time Mr Gideon appeared in court there were several exceptions to the general rule. Betts itself established the principle that States should provide representation to defendants if the case was especially complicated or there were special circumstances such as illiteracy that would prevent the defendant from making an effective defence; Powell v Alabama had established the right to free representation in cases where the defendant could be sentenced to death.
Mr Gideon applied to the Florida Supreme Court for a writ of habeas corpus demanding his release as he had been denied his right to due process by the refusal to appoint counsel in breach of the Constitution. His application was denied and so he hand wrote a five page petition for an order of certiorari (following the Woolf reforms these are now called quashing orders in the UK) from the US Supreme Court against the decision of the Florida Supreme Court. The petition was duly accepted for argument before the court and preparations began for the hearing.
The US Supreme Court isn’t silly, they know how difficult it is for an unrepresented layman to present a case effectively and so they require cases to be presented by a professional advocate. So, they appointed Abe Fortas a high profile lawyer who would one day become a Justice of the Supreme Court himself. Mr Fortas was based in Washington who appeared regularly in the Supreme Court. He was a partner in a large firm that had significant resources to devote to Mr Gideon’s case. Facing Mr Fortas was the 28 year old Bruce Jacob, a relatively inexperienced assistant attorney general in Florida who apparently had very few resources in contrast to those of Mr Fortas – an interesting reversal of firepower for Mr Gideon. Realising that this case would have a serious impact on other States, Mr Jacob took the sensible decision or contacting other States Attorney Generals for assistance. He received responses but probably not quite the ones he expected as 22 other states filed briefs… in support of Mr Gideon!
The other states had recognised that it was time to bring the rule in Betts to an end because delays caused by unrepresented defendants led to unfairness, delays and excessive court and prosecutorial costs – they actually wanted defendants to be properly represented, a lesson today’s UK government would do well to learn.
Ultimately, Mr Jacob put up a good fight on behalf of Florida but he faced a hostile panel and there was little doubt about the result. The Supremes held that representation in criminal felony trials is a fundamental right guaranteed by the US Constitution. The judgment was written by Justice Hugo Black – the only surviving member of the court that heard Betts and one of the minority who had felt that Betts was wrongly decided in 1942. Mr Gideon’s case was remitted back to the Florida Supreme Court with a direction that that the case be reconsidered in light of their opinion. This was done, the Florida Supreme Court directed a retrial at which Mr Gideon was both represented and acquitted.
A few years later the constitutional right to a lawyer would be extended again to cover misdemeanour offences as well as felonies.
As an interesting footnote, Mr Fortas would be appointed to the Supreme Court as an associate justice four years after Gideon. In 1968 President Johnson put his name forward as Chief Justice of the Supreme Court but he would be unsuccessful. The Republicans had taken a dislike to Mr Fortas after he successfully represented his friend, Lyndon B. Johnson to overturn a court order barring him from standing for election while an investigation into vote rigging was ongoing. The justice who heard Mr Fortas’s arguments and overturned the bar…. Justice Hugo Black. He was the first person to fail to win Senate approval as Chief Justice since 1795. In 1969, Mr Fortas resigned from the Supreme Court entirely and returned to private practice after agreeing to provide advice to another friend in return for $20,000 per year for life. Mr Jacob would become a Professor at Ohio State University. Mr Gideon married again but died in 1972, The local chapter of the American Civil Liberties Union later added a granite headstone, inscribed with a quote from a letter Gideon wrote to Mr Fortas, “each era finds an improvement in law for the benefit of mankind.”
English law is a funny old thing, made up of statutes enacted by Parliament and case law created by judges – judges don’t often admit to creating law, instead most like to pretend that they are more like dancers giving their own interpretation of what Parliament intended, or maybe sculptors examining a piece of marble and uncovering the shape of the law within. The truth of course is that they create law all the time.
Murder is an entirely judge made law – there is no Act of Parliament creating an offence of murder. Equally, while the various assault offences are today codified, mostly by the Offences Against the Person Act 1861, much of the law on assault comes from the judges.
One such example worthy of mention is the case of Tuberville v Savage (1669) 1 Mod Rep 3, 86 ER 684 an elderly case even by the standard of the legal system but nonetheless still one that governs our understanding of the law on assault 350 years after it was decided. This is particularly remarkable given that Tuberville is not a criminal law case! It was a civil case heard before the Court of the King’s Bench – the forerunner to our modern Queen’s Bench Division of the High Court.
In 1669, Tuberville and Savage exchanged angry words, which included Savage insulting Tuberville . In response, Tuberville put his hand to his sword and uttered what would become possibly the most famous sentence in English criminal law, “If it were not assize-time, I would not take such language from you.” The assize was effectively a travelling court made up of judges who traipsed around the country hearing cases in towns that had arisen since their last visit. Naturally, a man named Savage wasn’t about to put up with somebody placing his hand on his sword during an angry confrontation. He attacked Tuberville striking him to the face and, in the process, removing Tuberville’s eye.
Most people imagine that Tuberville was the defendant having been prosecuted for placing his hand on his sword – an assault in criminal law is complete when the victim fears immediate unlawful violence and the defendant intends him to have such a fear; however, the truth is that Savage was the defendant to a civil action brought against him by Tuberville. Savage argued that he had acted in self-defence when he struck first because he genuinely believed that Tuberville was about to attack him with the sword he had put his hand on. In response, Tuberville made the point that there was no force in this argument since the words spoken at the time made clear that there was no immediate threat in his action and thus that there was nothing to defend against.
The judges hearing the case (I can find no record of their names) ruled in Tuberville’s favour saying, “… the declaration of the plaintiff was, that he would not assault him, the Judges being in town; and the intention as well as the act makes an assault.” So in saying that he would not attack, the threat implied by the hand on the sword was vitiated.
Tuberville remains today good law; by way of example it was cited in R v Ireland  EWCA Crim 441 when the court had to decide whether silent telephone calls that caused psychological harm could amount to an assault.
Today I want to talk about one of the most famous and important legal cases in English law. It took a relatively minor incident and created a legal precedent that changed how English lawyers view the balance of rights between consumers and manufacturers. In so doing, it kick started what would eventually lead to the modern consumer protection laws that we enjoy today.
In the days before our modern consumer society there was very little need for laws to protect consumers but times change and law must change with the times. At the start of the 20th century the legal view on consumer protection took a decidedly Victorian approach – essentially unless you had a contract with the manufacturer and the manufacturer had breached that contract you were on your own. One senior judge even wondered publicly whether the law had any business ensuring that manufacturers of food and drink took care not to poison their customers! There were a couple of exceptions that allowed non-parties to the contract to obtain damages but the general principle was no contract, no damages.
So it was that late in the evening of Sunday the 26th August 1928 a Mrs May Donoghue went to the Wellmeadow Café in Paisley to meet her friend. The friend, whose name seems lost to history, ordered what I imagine was some type of ginger beer float (it consisted of a tumbler of ginger beer and an ice cream) for Mrs Donoghue.
What happened next is surprisingly unimportant but nonetheless a subject of some debate. Mrs Donoghue averred in her pleadings when she later sued the manufacturer of the ginger beer that the owner of the café poured half the bottle of ginger beer over her ice cream, which she ate. Her anonymous friend then poured the remaining beer into Mrs Donoghue’s tumbler at which point a dead and partially decomposed snail put in an appearance. Mrs Donoghue quickly felt ill and says she was later admitted to hospital for sever gastro-enteritis. Nobody seems to have asked why Mrs Donoghue appears incapable of pouring her own ginger beer but then maybe most lawyers mind don’t focus on the unimportant details as much as mine.
Mr Stevenson, the manufacturer of the ginger beer, appears to have felt differently about what happened that evening judging by the reported comments of W.G. Normand KC, Solicitor-General for Scotland who appeared before the House of Lords for Mr Stevenson when the case eventually made its way there. He wrote that he expected to lose at the House of Lords but said that if the case were actually tried on the facts he felt Mr Stevenson had a good prospect of winning – presumably he had some instructions on the facts that made him so confident. As it is, the case was never tried so we do not know whether Mrs Donoghue was really poisoned by a dead snail or whether it was a very determined lie to get cash from an innocent fizzy pop maker.
Donoghue v Stevenson is perhaps the most famous case in English law but anybody paying attention should already be wondering why – the incident happened in Paisley, Scotland. Yes, the most famous case in English legal history is… Scottish! Worse still Donoghue v Stevenson isn’t even the case’s real name – its proper name is M’Alister (or Donoghue) (Pauper) v Stevenson.
But, before we talk about Donoghue we need to look at the history that let up to it. Eighty-six years before Mrs Donoghue found her snail the Court of the Exchequer heard the case of Winterbottom v Wright (1842) 10 M&W 109 which involved a postman injured while driving a mail coach which collapsed as it was being driven. Mr Winterbottom sued Mr Wright, who was the man contracted to ensure the coach was safe, for negligence. The Court held that Mr Winterbottom had no cause of action against Mr Wright as there was no contract between them. Baron Alderson said:
“The only safe rule is to confine the right to recover to those who enter into the contract; if we go one step beyond that, there is no reason why we should not go fifty.”
At this point we can say that the balance between consumers and manufacturers was firmly tilted towards the rights of manufacturers; proof, if you needed it that in Victorian England individuals and their health were less important than business.
The situation was slightly different in the 1869 case of George v Skivington when Mr George bought some hair products for his wife from a Mr Skivington who was aware that the dye was to be used by Mrs George. The product was defective and caused injury to Mrs George. Now you may be thinking that given what we’ve heard about the ruling in Winterbottom 20-odd years earlier that the result in George should be a foregone conclusion, but you’d be wrong. You see while the judges in George saw the problem as a contract law one, Baron Cleasby saw negligence by a vendor/manufacture as analogous to the situation in fraud. It had been established in Langridge v Levy that a vendor who is guilty of fraud is liable to anybody who “has been injured by that fraud, although not one of the parties to the original contract, provided at least that his use of the article was contemplated by the vendor”. He went on to say that if you substitute the word “fraud” for the word “negligence” then the situation in George is analogous to that in Langridge. In that case a gun was sold to a father for use by his son, the vendor knew that the gun was dangerous. The gun exploded in the son’s hand causing injury. Chief Baron Kelly reasoned that where a vendor knows a product is to be used by another person then his liability for any unskilful or negligent acts will extend to that third party. Baron Pigott felt though that if the vendor did not know who the ultimate end user would be then his liability may not extend to that person.
Mrs George was only able to recover damages though because Mr Skivington was both the vendor and manufacturer of the defective hair dye. Had it been made by some other person not part of the contract with Mr George the result may have been different.
It’s worth remembering at this point that in 1869, Mrs George could not have legally purchased the hair product for herself as the legal identity of married women was entirely subsumed into that of her husband. Thus, if the court had held that only the legal purchaser, i.e. Mr George, could sue for injuries caused to him that would mean that a married woman could never claim compensation for injuries caused to her by faulty goods since she could never be party to the contract. This began to change a decade later with the passing of the Married Women’s Property Act 1879 but change would take a long time and is a topic for another day.
By the 1870s our balancing scales have tilted a little way towards the consumer but are still heavily weighted in favour of the manufacturer. Currently, the only way a consumer can secure damages for injury is to show that they have a contract with the manufacturer or that the manufacturer/vendor has been negligent or fraudulent in some way and – if Baron Pigott was correct – that you are somebody known to the vendor as being the ultimate end user of the product. At this stage, the ability to recover damages is firmly part of contract law and it feels as if tortious liability is an alien concept. Sadly, for one ship’s painter that wasn’t about to change any time soon.
In the early 1880s a man fell off a stage and hurt himself. The stage in question was suspended from the side of ship that was being painted in a dry dock. It was secured in place by ropes provided by the dry dock’s owners; however, the ropes were damaged and snapped causing the stage to give way. The man who fell was a painter employed by an independent contractor. He had no contract with the dry dock owner so could not sue for breach of contract – the same problem that stopped Mrs Donoghue suing the café owner. Our falling painter therefore sued in tort arguing that the owner of the dry dock owed him a duty that had been breached by the provision of damaged ropes. The case became known as Heaven v Pendle (1883) 11 QBD 503
The court disagreed with the painter and found against him – I mean why would anybody have a duty to ensure that the ropes they give you to hang off the side of a ship are fit for that purpose? However, Lord Brett, the Master of the Rolls (at the time the third most senior judge in the country behind the Lord Chancellor and Lord Chief Justice) was clearly a more modern thinker and disagreed with his brother judges saying in a dissenting judgment that:
“Whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary skill and avoid such danger”.
Because his was a dissenting judgment his words were obiter dictum nonetheless what he said laid the foundation for what half a century later would become the ground changing neighbour principle espoused by Lord Atkin in Donoghue.
Now, we find ourselves in 1932 where the Appellate Committee of the House of Lords (a now defunct 20th century appeal court) is deciding whether Mrs Donoghue has a cause of action. You see, the case of Donoghue is not about whether there was a snail in a bottle of ginger beer. It is not about whether Mr Stevenson’s factory was or was not causing a risk to public health. The case is solely about whether Mrs Donoghue had the right to sue Mr Stevenson. In 1932, the legal position facing Mrs Donoghue was that if Mr Stevenson had sold the ginger beer direct to Mrs Donoghue’s unnamed friend knowing that Mrs Donoghue would be the ultimate consumer then she would have a right to sue in contract law. But following the precedent set in Heaven the manufacturer of the beer would appear to owe no duty of care to Mrs Donoghue.
Enter Lord Atkin.
Appearing before the House of Lords, George Morton, KC, argued that there were no previous cases on precisely the point in Donoghue and that the authorities that did exist were contradictory. He argued that although at that time a manufacturer owed a duty only to those with whom they had a contractual relationship unless the articles were dangerous per se or dangerous to the knowledge of the manufacturer but that such a strict interpretation of a manufacturers duty of care was not consistent with the public interest. He went on to say:
“When a manufacturer puts upon a market an article intended for human consumption in a form which precludes the possibility of an examination of the article by the retailer or the consumer, he is liable to the consumer for not taking reasonable care to see that the article is not injurious to health. In the circumstances of this case the respondent owed a duty to the appellant to take care that the ginger-beer which he manufactured, bottled, labelled and sealed (the conditions under which the ginger-beer was put upon the market being such that it was impossible for the consumer to examine the contents of the bottles), and which he invited the appellant to buy, contained. nothing which would cause her injury”
In response, Scotland’s Solicitor-General, W.G. Normand, argued that in English law the manufacturer owed no duty to the ultimate consumer of a product unless that consumer had a contract with the manufacturer. He saw Mrs Donoghue’s case as an attempt to introduce a third exception to the rule that a manufacturer is not liable in contract law (the others being fraud and negligence). He posed this question, “It is said that people ought not to be allowed to put on the market food or drink which is deleterious, but is there any real distinction between articles of food or drink and any other article?” To most modern readers the answer is obvious, a resounding, “yes of course there is a bloody difference” but to lawyers raised in the Victorian era the question no doubt raises issues about freedoms and rights of businesses – you may wonder whether the rights of those consuming or using the products even entered their heads sometimes, but of course we know now that Mr Normand expected his client to lose.
Today, well advanced through the second decade of the 21st century as we are, the notion that a manufacturer of a food product should not be held responsible for defects in his products that could harm or even kill people sounds bizarre. But, in the 1920s it seems, from what I have read, that drinks were particularly dangerous compared to those we enjoy today. None more so than the ginger beer featured in Bates v. Batey & Co., Ld.  3 K. B. 351, which exploded causing injury to Mr Bates. A jury found in Mr Bates favour on the basis that had the manufacturer of the ginger beer taken reasonable care to examine the bottle then they would have recognised it was defective; a point Lord Atkin would pick up on when dealing with his own ginger beer case.
Lord Atkin gave the leading judgment in Donoguhue and, I have no doubt, drew inspiration from Lord Brett’s judgment in Heaven, to expound what came to be known as his neighbour principle. I said in the very first post on this blog that I might look at the Ten Commandments at some point, while not quite the Commandments, Lord Atkin did draw on Biblical teachings saying, “[t]he rule that you are to love your neighbour becomes in law, you must not injure your neighbour… You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” Lord Atkin did not take this literally, indeed he said in his judgment that the law cannot recompense every moral wrong inflicted upon people and that rules of law exist to limit the remedies available. His solution to limiting liability was to ask, “who is my neighbour?”
“The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in. contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
He went on to make the point that as the law stood at the time a consumer poisoned by the negligence of a food manufacturer would have no recourse in law either against the manufacturer or the purveyor of the food since the purveyor would not have been negligent and pointed out that this principle extends far beyond food to a whole host of non-food items that could be purchased for use by another person, such as soap or household cleaners that might be used by the purchaser’s family, servants or guests. In his words,
“[i]f this were the result of the authorities, I should consider the result a grave defect in the law, and so contrary to principle that I should hesitate long before following any decision to that effect which had not the authority of this House… I do not think so ill of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilized society and the ordinary claims it makes upon its members as to deny a legal remedy where there is so obviously a social wrong.”
His Lordship turned his attention to the case of Bates saying that,
“the manufacturers must have contemplated the bottle being handled immediately by the consumer, they owed a duty to him to take care that he should not be injured externally by explosion, just as I think they owed a duty to him to take care that he should not be injured internally by poison or other noxious thing.”
As in Donoghue, Mr Bates had no contractual relationship with the manufacturer of the ginger beer but Lord Arkin did not see that as a problem pointing out that this is the case with a great many things, such as a gas fitter installing equipment that could cause harm to a great many people.
Concluding his judgment, Lord Atkin pointed out that nothing he has suggested would be contradicted by members of the public in either England and Wales who would then, as we do today, expect the law to protect them in their everyday lives. He also noted that the USA (or New York at least) was already ahead of the game; the New York Court of Appeals had already decided MacPherson v. Buick Motor Co. 217 N. Y. 382 that did for the US what Donoghue was about to do for the UK.
Lord Tomlin perhaps went further that Lord Atkin in his judgment saying,
“I think that if the appellant is to succeed it must be upon the proposition that every manufacturer or repairer of any article is under a duty to everyone who may thereafter legitimately use the article to exercise due care in the manufacture or repair. It is logically impossible to stop short of this point. There can be no distinction between food and any other article. Moreover, the fact that an article of food is sent out in a sealed container can have no relevancy on the question of duty; it is only a factor which may render it easier to bring negligence home to the manufacturer.”
In the years since Donoghue was decided I think it is fair to say that while Lord Atkin took the credit for the judgment, it is Lord Tomlin’s view that best reflects our modern view of the condition in which products should reach their end user. Nonetheless, in its day Lord Atkin’s neighbour principle set the scene for the future development of the law taking us from the dark ages where only the purchaser could recover goods if he had a contract with the manufacturer to an age where manufacturers are expected to ensure the safety of their products for anybody who may ultimately turn out to be the end user.
Today we are going to take a look at a really important case in English and Welsh criminal law, one that made headlines and overturned a centuries old legal principle that should never have existed if anybody had bothered to do their job properly over the previous couple of hundred years.
On the 12th November 1989, Mr R telephoned his wife, who had left the family home with their young child, some 22 days earlier to live with her parents. Mr R told his wife that he planned to “see about a divorce”. Mrs R’s parents were out at around 9pm that night when Mr R attended his in-law’s home. He forced his way inside and attempted to have sex with his wife against her wishes, choking her as he did so.
Mrs R made a complaint to the police and Mr R was arrested. He was interviewed and made full admissions to the assault and attempted rape. It may not have been a surprise to learn that he was charged with assaulting his wife but it may well have come as a shock to the lawyers of the day to hear he was also charged with attempted rape. You see for the 253 years before Mr R attacked his wife the accepted legal position had been that upon marriage the wife consented to sex with her husband. Between 1736 and 1949 the wife could not withdraw her consent while the marriage subsisted, so no didn’t mean no – no meant nothing as a wife had no right to say it! In 1949, the courts accepted that a court could make an order withdrawing the wife’s consent but it wasn’t until 1991 that a court ruled a wife had the right to say no to her husband.
The case that overturned that centuries old law: Regina v R  3 WLR 767.
For what its worth, my opinion is that legally speaking this notion that a husband was immune from a charge of raping his wife was always utter nonsense. I’m not talking morally, I’m talking legally – the only reason this rule existed was because not enough people did the most basic legal analysis and actually looked for some authority for this principle.
In ye olden days, a marriage was not a partnership of equals who joined together to forge a life for each other. Marriage may well have been contracted through love but I get the distinct feeling that in a lot of cases, particularly among the wealthy, marriage was all about marking a good match (whether that was for the couple or their families) and that hopefully love would follow. A woman marrying in the 1700s did not join her husband in partnership; her entire legal identity disappeared as it was subsumed into that of her husband. Thus, a married woman could not contract her own behalf nor could she own property. So, any property she owned at the start of the marriage became her husbands, she might own it legally but only the husband could deal with it. Any inheritance she received during the marriage became her husband’s property not her own. Any income she earned belonged to her husband. When you view marriage not as a partnership between two individuals but as a union literally fusing the legal identity of the woman into that of the man’s you start to see how the notion that a wife has no right to refuse her husband’s sexual whims arose.
The legal authority (and I use the word “authority” very loosely in this context) that a husband had an absolute right to have sex with her wife comes from a comment in a legal text book published in 1736 called the History of the Pleas of the Crown when Sir Matthew Hale wrote:
“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.”
Matthew Hale had been Chief Justice for five years but he also died in 1676, 60 years before the History of the Pleas of the Crown was published. I am writing this in 2017 – 60 years ago was 1957, not only was my dad only 15 years old but more importantly the law since then has changed beyond recognition. Sir Matthew did not think to cite any authority for his claim so while it may have been perfectly true when he wrote it sometime before 1676 it is entirely possible that the law had changed in the 60+ years between writing and publication. It also must be said that without any authority for his claim it is one that should always have been treated with extreme scepticism, especially when one notes that other legal textbooks exist from the time (e.g. Coke, Glanvill, Bracton and Dalton) and they do not mention the marital rape exception.
We jump forward now 152 years to join the Crown Cases Reserved court, a long since defunct Victorian appellate court, whose 13 judges are deciding the case of R v Clarence (1888) 22 QBD 23. Sir Matthew’s assertion did meet some scepticism from two of the judges, e.g. when Field, J. said:
“The authority of Hale C.J. on such a matter is undoubtedly as high as any can be, but no other authority is cited by him for this proposition, and I should hesitate before I adopted it. There may, I think, be many cases in which a wife may lawfully refuse intercourse, and in which, in the husband imposed it by violence, he might be held guilty of a crime”
Wills, J. also said that he was unwilling to accept that a husband cannot be guilty of raping his wife and noted that it is a proposition, “… for which there seems to me to be no sufficient authority.”
Hawkins, J. seemed to take the view that a wife cannot withdraw her consent unless it would be dangerous to her health:
“Rape consists in a man having sexual intercourse with a woman without her consent, and the marital privilege being equivalent to consent given once for all at the time of marriage, it follows that the mere act of sexual communion is lawful; but there is a wide difference between a simple act of communion which is lawful, and an act of communion combined with infectious contagion endangering health and causing harm, which is unlawful. It may be said that assuming a man to be diseased, still as he cannot have communion with his wife without contact, the communication of the disease is the result of a lawful act, and, therefore, cannot be criminal. My reply to this argument is that if a person having a privilege of which he may avail himself or not at his will and pleasure, cannot exercise it without at the same time doing something not included in this privilege and which is unlawful and dangerous to another, he must either forego his privilege or take the consequences of his unlawful conduct.”
These comments had no real bearing in law – although arguably more than Sir Matthew’s assertion – because they were merely obiter dicta and dissenting judgments. Clarence was a case in which the husband had consensual sex with his wife and infected her with gonorrhoea. There was a question whether the wife would have consented to sex had she known of her husband’s infection but that was held to be irrelevant because she had in fact consented. It should be noted that in Clarence the husband was charged not with rape but with an assault and was acquitted on appeal because his wife had consented and so no assault or battery had occurred, a slightly different position to an allegation of rape, particularly in the 1800s.
I mentioned earlier that in 1949 it was decided that a court could make an order bringing the wife’s implied consent to an end, that was a case called R v Clarke  2 ALL ER 448. In Clarke, a magistrates’ court made a separation order on the 2nd March 1949. On the 12th March 1949, the husband had sex with the wife. He was subsequently charged with rape and assault occasioning ABH. The defence sought to stay the rape allegation on the basis it was an offence not known to law citing Sir Matthew Hale’s book as proof of that. Mr Justice Byrne sitting at the Leeds Assizes agreed that Sir Matthew’s opinion of the law was correct, albeit once again his opinion was a bald assertion backed up by no authority whatsoever; however, Byrne, J. held that although the marriage still existed at the time of the allegation the wife’s implied consent had been rescinded by the magistrates on the wife’s behalf when they made the separation order. On the basis, the defendant was arraigned, entered a not guilty plea to both counts and was acquitted by the jury following a trial.
In R v Miller  2 W.L.R. 138, Mrs Miller had petitioned for divorce when her husband had sex with her against her will. The facts are long and complicated involving adultery by the wife that resulted in her giving birth to a child and allegations of adultery by the husband that were denied, all in all it sounds like a very messy case. Whatever the truth of the goings on, Lynskey, J. had little sympathy for a wife refusing her husband sex even after she had left him and petitioned for divorce. He appeared to take the view that a wife could not withdraw consent herself but must ask permission of a court:
“Can I say that because the wife has left her husband and has brought a petition for divorce that one must infer a revocation of the wife’s implied consent? I have considered the matter very carefully, and I cannot see that, because a petition for divorce has been presented, that has any effect in law upon the existing marriage. It is not until a decree nisi, or possibly a decree absolute, has been pronounced that the marriage and its obligations can be said to have been terminated.”
Interestingly Miller considered and followed R v Jackson  1 Q.B. 671 in which a court had ordered a wife to return to the marital home. She refused and was taken there by force then kept locked in the house. The husband forced himself up her. In Jackson, it was held that while the husband had the right to require his wife to have sex with him he was not entitled to use force to achieve that aim and he was thus guilty of an assault upon her. I cannot be alone in thinking that a situation where a husband can be guilty of a lesser assault on his wife but not of a greater assault, i.e. rape, is a pretty bizarre situation that leaves one seriously questioning what thought was put into these decisions.
In the 1970s the Court of Appeal heard the case of R v Steel (1976) 65 Cr App R 22 and held that where husband and wife are living apart and the man undertakes not to molest his wife then the court must ask itself whether there is an agreement between the husband and wife that the wife’s consent to sexual intercourse no longer exists. Now you don’t have to be a lawyer to see just how silly this position is: the question is whether the wife has withdrawn her implied consent to sex but the test is whether the husband, who is accused or rape, has agreed to this.
So, we have a position where the law is that a wife consents at marriage to sex with her husband and she cannot revoke that consent unless it’s dangerous to her health… or a court says she can withdraw her consent…. or her husband agrees to the withdrawal of consent. But, a husband who uses force to exercise his right to sex does commit an offence albeit one of assault not rape. Even if you ignore the fact that Sir Matthew Hale cited absolutely no legal authority for his original proposition the fact that courts are having to create so many exceptions to this rule should tell you that the original rule needs some more thought.
This was a situation that the Scottish courts found too ridiculous to bear and in Stallard v HM Advocate  SLT 469 held that even if the notion that a wife cannot refuse sex with her husband was sensible in the 18th or 19th century that time had long since past and that in the 20th century there was no plausible justification for saying that where a wife does not consent to sex with her husband she should be taken to have consented because she is married.
In July 1990, Simon Brown, J. ruled in R v C  1 Al ER 755 that the Scottish law position was the only defensible stance and stated that the law in England must be that there is no exception for husbands from the law of rape. That was a ruling given in the Crown Court and thus was not binding on other courts and appeared not to have been appealed.
It was against this historical background that R v R came to be heard first in the Court of Appeal and then by the House of Lords. By this time, somebody had decided to get some Queen’s Counsel involved so things took a distinctly intellectual term.
The Sexual Offences (Amendment) Act 1976 codified the offence of rape describing it as a man having “unlawful sexual intercourse with a woman who at the time does not consent to it”. It was that use of the word “unlawful” that caused problems. For some it meant “illicit” or outside the bounds of marriage. If that is correct then Parliament must have intended to preserve the husband’s marital rape exemption. Taken literally this would overrule all of the exceptions created by the courts over the years. If that is correct then why did Parliament not spell it out (did they even think about it I wonder). Alternatively, “unlawful” could mean that Sir Matthew Hale’s exemption from prosecution remains good law but so do all the exceptions.
Their Lordships identified a third pathway, which ignores the whole question of what does “unlawful” mean and simply attacks the legitimacy of the marital rape exception, in the words of the court, the third solution is to say that “Hale’s proposition is based on a fiction and moreover a fiction which is inconsistent with the proper relationship between husband and wife today.” The problem with this is that where you have such a longstanding rule it should be for Parliament to abolition it or so goes the conservative lawyers thinking. For what it is worth, I do not subscribe to this view. Merely because a rule is old does not mean it is correct either at the time it was promulgated or today – we tend to think of ancient wisdom as somehow worthy of respect because of its age but just because an idea is tenacious does not mean it is correct. Where a law is entirely judge made I do not see that a later judge can refuse to right an obvious wrong simply because that law is old.
The House of Lords took the view that it was inconceivable that Parliament intended to abolish the exceptions and that if it had intended to do so then it would have said so expressly in the Act. Considering whether Parliament intended to preserve both the marital rape exemption and the exceptions to it the House of Lords thought that it would be necessary to construe “unlawful” as meaning “outside of marriage or within marriage in a situation covered by one of the exceptions to the marital exemption”. Their Lordships took the view that this would be a unique definition of “unlawful” for rape cases and that had this been Parliament’s intention it would have said so – the court seems to have some doubts as to whether the draftsman ever considered the marital rape exceptions.
The conclusion of the House was that “[t]here are no rational grounds for putting the suggested gloss on the word, and it should be treated as being mere surplusage in this enactment… I am therefore of the opinion that section 1(1) of the Act of 1976 presents no obstacle to this House declaring that in modern times the supposed marital exemption in rape forms no part of the law of England.”
With that flourish, the House of Lords finally brought to an end the longstanding legal myth that husbands had the absolute right to rape their wives at will.
As I’ve said several times in this post, Sir Matthew Hale cited no authority for his marital rape exemption and almost no judges questioned whether his statement was good law or not despite the lack of authority and the fact that no other textbook or case before him mentions this exemption. I cannot help the feeling that had judges been more willing to put some serious critical thought into whether this assertion was actually good law or not we would not have had a situation where in the latter part of the 20th century a man could lawfully force a woman to have sex with him and face absolutely no consequences as a result of that act.
In the beginning God created the heavens and the Earth… Then God said, “Let us make mankind in our image”… So God created mankind in his own image and mankind did quickly create problems for themselves that needed solving by others. Unfortunately, God wasn’t a great problem solver it seems to mankind was forced to solve his own problems and so created systems of laws to help. This blog is the story of those laws.
I’m no historian and am even less of a theologian so that first paragraph may not be entirely historically accurate. In this blog (the whole thing not just this post) I will explore some of histories more important legal developments, I’ll discuss some of the more interesting cases to come before the courts and hopefully by the end of it I’ll have worked out for myself what this law stuff is all about.
As a schoolboy I was taught that when writing a story you should start at the beginning, have a middle then an end. I note Mary Beard seems to disagree with this notion in her excellent book SPQR but I don’t pretend to be anywhere near as clever has her so I’m going to stick to the school’s formula for this first blog – I’ll jump though history later – and write about the beginning of it all.
Where did law start? I don’t know. Sorry to disappoint but nor does anybody else really. China looks like a pretty good bet since they have the oldest operating legal system in the world. Early Chinese law sounds like it would have had some pretty enjoyable cases for an advocate to argue – deference to things facing south was a thing and judgments could be founded, on what I presume was a purposive approach to statutory interpretation, by reading the markings on a tortoises shell. Still they did find the time to ban parents marrying their kids, which is good.
The Chinese system seems to have been what we would today call a deeply patriarchal system whereby the eldest male in the family was the boss and ancient Chinese laws prohibited back-chatting your elders; punishments could include death. The older I get the more I approve of this sort of law. We could at the very least introduce it for bus passengers.
While China may have the oldest legal system still in use I believe I’m correct in saying that the earliest Chinese legal code that survives date from around 1027 BC at the very earliest. In legal terms even the ancient Chinese law is a new kid on the block.
The Code of Urukagina looked to combat corruption doing so by giving legal rights to poor and vulnerable individuals who may otherwise have been abused or neglected by the elite or the state itself. It dates from around 2380 BC, a cool 1,353 years before the earliest known Chinese legal code.
King Urukagina’s code required rich people to pay poor people in silver when buying goods from them and prohibited the rich from requiring or forcing the poor to sell against their wishes. Essentially, Urukagina established property rights and, presumably, allowed the poor and widowed women he sought to protect to enforce those rights against the rich. His code also exempted widowed women and orphans from taxes. He also sought to reduce theft and murder thus enshrining in law the earliest recorded criminal laws.
Although Urukagina took some steps to protect women he wasn’t exactly a modern feminist. It seems polygamy was acceptable, as was polyandry at the start of Urukagina’s reign but he outlawed women taking multiple husbands and ordered that any woman doing so should be stoned to death. A woman committing adultery should also be stoned to death, using stones inscribed with her crime.
While Urukagina’s Code may be the oldest we know about, we do not have the text of the code only writings that make reference to it. Ur-Nammu’s Code is the old legal code that has survived, at least in part, to this day from its creation sometime around 2112 BC. Archaeologists have been able to translate around 40 of the code’s 57 laws from various stone tablets.
Ur-Nammu’s Code created criminal offences and provided punishments for those committing the offences. Later legal systems could be very brutal – the Babylonians insisting on an eye for an eye and our own Victorian legal system that executed children and transported people for relatively trivial offences are good examples. In contrast, Ur-Nammu’s Code prescribes a system of financial penalties for offences, including what we might now call assault occasioning actual or grievous bodily harm. Death was still a penalty for serious offences such as rape, murder and robbery as well as crimes we would no longer call crimes, such as adultery.
The code of Ur-Nammu was enforced by a legal system comprising specialised judges who would hear evidence given under oath, give reasoned judgments and make enforceable orders. Importantly, the punishment ordered by a judge should be proportionate to the crime under Ur-Nammu’s Code. This is something that continues under modern English law where we have concepts such as totality that limits the total sentence that can be imposed for multiple crimes as well as bandings for fines so a rich man pays more than a poor one so that the punishment fits the crime.
Around 1850 BC, some 820 years before the earliest known Chinese laws a court was hearing the trial of three men and a woman all accused of murdering the woman’s husband. There were nine witnesses for the prosecution and two for the woman who both gave evidence that the victim had been violent towards his wife and that she had not taken part in the murder, although it seems that she was aware of it after the fact and covered up the death. Today we might say that the wife was acting under some sort of duress in covering up the murder once she discovered or, or even diminished responsibility if she had a hand in planning the killing. Whatever the ancient term, her defence was successful and the court acquitted her. Her three co-defendants were not so lucky; all three were executed in front of the victim’s house.
About 1797 BC, a man called Ankh-ren, or possibly Sekhenren, died, probably in the town of Kahun, which is in Egypt. We know this because more than three-and-a-half thousand years later in 1889 Flinders Petrie found his will along with that of another man named Uah. Ankh-ren left all his property to his brother, Uah.
Uah’s will passed all the property he had been given in life by his brother to Uah’s wife, Teta. She was banned from pulling down the buildings but was given free reign to pass them on to her children however she saw fit. In modern English law, we would probably say that Uah had created a trust and appointed Teta as trustee of it with a life interest for her and the children as the ultimate beneficiaries. Today this would be a complex legal instrument, which may well suggest that humans developed relatively complex law a very long time ago. Indeed so modern in form was Uah’s will that the London Evening Standard suggested that it could even be granted probate by a court in 1889.
While I may one day choose to write a whole post about Draco, I cannot end this post on the beginnings of law without mentioning Draco’s Law, written down in 621 BC. Devised by a Greek citizen the law was so severe that the orator Demades remarked that Draco had written his laws in blood not ink. The penalty for almost everything was death. When asked why, Draco is reported to have replied that “the smallest [offence] deserves death and there is no greater punishment I can find for the greater crimes”. Given this, I am left wondering why Draco went to the effort of differentiating between intentional and unintentional homicide.
So severe were Draco’s laws that today, more than two and a half thousand years later we still use his name to describe a particularly harsh law or penalty, which we say are draconian. In an ironic twist Draco was loved for his draconian law so much so that he was showered by the citizens of Athens with their hats and cloaks, which I am told was a customary way of showing respect. They showed him so much respect that he is said to have been smothered to death by the hats and cloaks they threw!
I am going to end there. I don’t pretend that this is a full historical account of all the important ancient legal codes and decisions because it isn’t. I haven’t touched on the Babylonian laws, the Gortyn Code, Roman law or even the ten commandments, all of which deserve a mention in the history of law. Maybe I’ll get to them one day but for now this brief flypast of the first 1,759 years of ancient legal codes, documents and cases will have to suffice.