John R. Spencer

Public Nuisance—A Critical Examination

Why is making obscene telephone calls like laying manure in the street? Answer: in the same way as importing Irish cattle is like building a thatched house in the borough of Blandford Forum; and as digging up the wall of a church is like helping a homicidal maniac to escape from Broadmoor; and as operating a joint-stock company without a royal charter is like being a common cold; and as keeping a tiger in a pen adjoining the highway is like depositing a mutilated corpse on a doorstep; and as selling unsound meat is like embezzling public funds; and as garaging a lorry in the street is like an inn-keeper refusing to feed a traveller; and as keeping treasure-trove is like subdividing houses which so “become hurtful to the place by overpestering it with poor.” All are, or at some time have been said to be, a common (alias public) nuisance. The definition of this offence, according to Archbolds Criminal Pleading and Practice , is as follows: “Every person is guilty of an offence at common law, known as public nuisance, who does an act not warranted by law, or omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majestys subjects.” The person who commits a public nuisance incurs liability to life imprisonment and unlimited fines. He can be made vicariously liable for the offence if it is committed by his servants. He can be ordered to stop it by an injunction, and made to pay damages in tort if it causes anyone loss. With such a broad concept in existence, backed with such broad remedies, what need have we of any other criminal offence?—or torts?—or remedies in administrative law?

The European Arrest Warrant

In broad terms, there are two approaches to returning suspects and convicted persons to the other countries where they are wanted, and would prefer for obvious reasons not to go. One is what is called in the common law world ‘the backing of warrants’. Here, the authorities of the jurisdiction where the person is wanted issue their normal warrant of arrest, which is sent directly to the authorities of the jurisdiction where he is, who endorse it if it appears to be in order, and give it to their policemen to execute it as if it were their own. The suspect is then ‘lifted’, and handed over to the authorities of the country where he is wanted with the minimum of fuss—the unspoken premise being that the authorities of the requesting jurisdiction normally act lawfully and reasonably, and their arrest warrants can be taken at face value and acted upon unless a strong reason to the contrary can be given.

Motor-Cars and the Rule in Rylands v. Fletcher: A Chapter of Accidents in the History of Law and Motoring

Readers of A. P. Herberts Misleading Cases will recall the fictitious decision in Haddock v. Thwaile, where the Court of Appeal extended strict liability under Rylands v. Fletcher to motor-cars on the highway, and--carried away on a tide of Luddite eloquence--revived and extended the law of deodand by ordering the unfortunate motorists car to be destroyed. Nowadays it is almost forgotten that this story is nearly based on fact. Before the First World War, at the dawn of the motor age, the English courts came within a whisker of imposing strict liability upon the owner of a motor-car for all the damage which it causes in use. Language: en

Criminal Liability for Negligence? A Lesson from Across the Channel?

This article first examines criminal liability for negligently causing death or injury in English law, which it shows to be both complex and confused. It then examines French law on the subject, which at first sight appears both simpler and more rational, but has run into a number of difficulties in practice. A third and final section considers whether the French experience provides any useful lessons for the possible reform of English law.

Adversarial vs inquisitorial systems: is there still such a difference?

The article responds to the common perception that the English system of criminal procedure is ‘accusatorial’ whilst those in continental Europe are ‘inquisitorial’ and that these categories are distinct. On closer inspection, what were different traditions have been modified on both sides, so that pure systems no longer exist. The position on the United Kingdom is further confused in public discussion by equating the European Convention on Human Rights and the United Kingdom’s membership of the European Union, with the latter especially being seen in some circles as an unwelcome force for harmonisation.

Signature, Consent, and the Rule in L'Estrange v. Graucob

I t seems to be generally accepted that a person who signs a contractual document may not dispute his agreement to any of the terms which it contains, unless he can establish one of three defences: (a) fraud, (b) misrepresentation, or (c) non est factum .

The Principle of Mutual Recognition

The chapter deals with the principle of mutual recognition, generally considered to be the key principle of international judicial cooperation within the European Union. The chapter begins with an analysis of this principle, in both its active and passive sense, with a brief overview of its first enunciations in criminal matters (Cardiff European Council of 15 and 16 June 1998, Tampere European Council of 15 and 16 October 1999). The chapter then outlines the functioning and the operating conditions of the principle (order model, grounds of refusal) and its relationship with mutual trust and with legislative harmonisation in the context of the EU law.

Telephone-Tap Evidence and Administrative Detention in the UK

In the UK, it is currently the law that the contents of intercepted telephone calls, or letters intercepted by transmission in the post, are generally inadmissible as evidence in civil or criminal proceedings; and this so, whether the interception was carried out legally or illegally. This is, of course, in sharp contrast to position everywhere else in the world, including the rest of the common law world, where (broadly speaking) the rule is that the intercepts are admissible, provided they were obtained legally. It is also counterintuitive to the point where even intelligent people with legal training sometimes find it hard to grasp. (When setting examination papers in evidence for law students, I regularly include, as a trap to the unwary, a problem where a piece of damning evidence against the defendant is an intercepted phone-call: and although the class has heard the rule explained in lectures, at least a third invariably tells me, wrongly, that the intercept is admissible, provided it was lawfully obtained.)

The Corpus Juris Project—has it a future?

My paper on the Corpus Juris project in the first volume of this Yearbook closed by saying, in effect, “Watch this space!” At the end it told how, at the time of writing, the European Parliament and Commission had re-engaged the original team that drafted the proposals, plus some others, and constituted them as a Comite du suivi with instructions to find out how hard or easy it would be to integrate the Corpus scheme into the existing legal systems of the Member States. And it also told how the House of Lords Select Committee on the European Communities had begun to carry out a study of the Corpus project.