Fair Comments On A Decision Of A Court

FAIR COMMENTS ON A DECISION OF A COURT FAIR COMMENTS ON A DECISION OF A COURT BY Ch. Irshad Ahmad [Additional Secretary, Ministry of Law and Justice, Islamabad.] Someone stole a Professor's umbrella. May be that the Professor had no money to buy a new umbrella, or he thought, why he should buy another umbrella for another thief. He decided to replenish his need by stealing someone's umbrella. He actually moved an umbrella with dishonest intent to take. He, was caught. But, it was found that the umbrella the Professor moved was that which was stolen from him earlier. The title in stolen property does not pass to thief. Therefore, the title in the Professor's umbrella had remained with the Professor. The Professor being the owner of the umbrella he moved, though with dishonest intent to take some else's property, could not be convicted for committing theft, because no one can be held thief in respect of his own goods (cases of pawned goods excepted). Was the Professor not guilty of attempting to steal? The Court held: he was not. (Regina v Collins 9 Cox. C.C. 497). A thief intending to steal money put his hand into the pocket of a person. The pocket was empty. The thief could not steal anything. He could not be convicted for committing theft because he did not move anything. But, he was convicted for attempting to steal. Such cases have long baffled Courts and scholars. Le Fave and Scoot observed (Criminal Law (1972) 438): "judging from the volume of literature in this area (criminal attempts), scholars in the field of substantive criminal law appear to be more fascinated with the subject of impossibility in attempts than with any other subject". 2. By 1973 all commentators on criminal law had pretty well agreed that so‑called factual impossibility was no defence to a charge of attempt. But, there came a verdict from a high judicial authority‑‑‑the House of Lords of England that a person could not be convicted for attempting to receive stolen goods if the goods were not actually stolen (Haugton v. Smith (1973)(3) All ER 1109). The decision in Haughton v. Smith once again caused the resting pendulum to oscillate. The British Parliament was minded to make the law of criminal attempts certain. There were two questions relating to substantive law of criminal attempts: should the actor be punished for guilty mind judged subjectively or only if he was objectively guilty. The Parliament decided to punish the actor if he was subjectively guilty of attempting to commit the crime. The law that was enacted came to be called `the Criminal Attempts Act, 1981'. The Act provided that a person may be guilty of attempting to commit an offence if, with intent to commit an offence, he does an act which is more, than merely preparatory to the commission of the offence even though the facts are such that the commission of the offence was impossible. It appears that the legal circles did not accept the idea that the Parliament intended to punish a person who only subjectively intended to commit the crime. The issue was debated and considered by the House of Lords in Anderton v. Ryan (1985) 2 All ER 355, There a woman had bought a stereo believing that it was a stolen property, and every one knows receiving stolen property is a crime. However, there was no evidence that the stereo was actually a stolen property. Prosecution asked the Court to convict the woman for attempting to receive stolen property. The House of Lords did not agree. The House ruled that they cannot convict a person for receiving stolen goods when there was no proof that the goods were stolen, and if they cannot convict for receiving non‑stolen goods they, cannot convict for attempting to receive such goods. The prosecution and defence lawyers were debating the issue in Courts. Out of Courts two well‑known Professors for criminal law Professor Brian Hogan and Professor Glanville Williams were debating the issue in their own way writing article after article‑‑(See: The Criminal Attempts Act and Attempting the Impossibility by Brian Hogan (1984) Criminal L.R. 584; Attempting the Impossible‑‑the Last Round by Professor Glanville Williams (1985) 135 New Law Journal 337;‑ Attempting the Impossible and the Principle of Legality by Brian Hogan (1985) 135 New Law Journal 454; and The Lords Achieve the Logically Impossible by Professor' Glanville Williams (1985) 135 New Law Journal 502). Professor Hogan was supporting the House of Lords' decision in Anderton v. Ryan. Professor Williams was of the view the House of Lords was wrong. According to Professor William s whatever may be the state of law before the 1981 Act the position under Act had changed, and a person could lawfully be convicted for attempting to commit the crime if he intended to commit the crime and did all that was necessary to complete the crime even if he could not be guilty of complete crime. Professor Williams was very much unhappy on the decision of the House of Lords in case Anderton v. Ryan. The Professor commented on the above decision of the House of Lords in his article entitled "the Lords Achieve the Logically Impossible" (1985) 135 New Law Journal 502. The last paragraph of the article reads as follows: "Let me say frankly that I deplore this decision, above all, because it adds one more to the depressing line of cases in which the House of Lords seems to behave as though it is above the law. Rather frequently, it rides over a statue, even a recent one, or over a body of judicial authority, even one approved by the consensus, if their Lordships wish the law to be different. The changes that they introduce come without warning, and are often‑ill considered and ill -drafted. Most of their Lordships, with the occasional honourable exception, seem to share an institutional arrogance, passed on by old hands to new entrants, and derived from the fact that they have no tribunal set over them to keep them in check:" (The expression 'new entrants' in the quotation refers to Lord Roskill and Lord Bridge who authored the decision in Anderton v. Ryan case and at the relevant time were, in the descending order of the seniority of 9 Lords of Appeal in Ordinary at No.5 and 6). 3. The Lords reacted to the above comments of Professor Williams, and of course, it appears, seriously. The Lords did what they sparingly do. They overruled their decision in Anderton v Ryan within a period of less than a year; to be exact after 361 days. The concluding paragraph of Lord Bridge's judgment in Reg. v. Shivpuri (1986) 2 All ER 334 by which Anderton v. Ryan was overruled reads as follows: "I cannot conclude this opinion without disclosing that I have had the advantage, since the conclusion of the arguments in this appeal, of reading an article by Professor Glanville Williams, entitled `The Lords Achieve the Logically Impossible" (1985) 135 NLJ 502. The language in which he criticises the decision in Anderton v. Ryan is not conspicuous for its moderation, but it would be foolish, on that account, not to recognize the force of criticism and churlish not to acknowledge the assistance I have derived from it." 4. I salute Professor Glanville Williams and Lord Bridge of Harwich.