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GAZETTE
SEP
T
EM
BER 1976
Book Review
Archbold, J. R., Pleading, Evidence and Practice
in Criminal Cases. 39th edition; edited by
Stephen Mitchell, John Huxley and T. Fitzwalter
Butler, cxcviii, 1823p. plus 100 blank pages for
notes. 26 cm. London: Sweet & Maxwell, 1976.
Cloth ed. £30.00.
The thirty-ninth edition of Archbold is hot off the
presses and comes complete with one supplement.
Criminal law is rapidly expanding at the moment and
this is evidenced not alone by the editor's note of des-
pair in the Preface but also by the increase in the size
as well as in the pages of the book. There are more
than 200 pages than before, the length and breadth of
each page is significantly increased, and unusually, a
comprehensive table of contents is now prefaced to
some of the more detailed chapters.
A new chapter appears on the mental element in
crime. Recent cases have brought the concept of the
guilty mind to the surface for re-examination and there
seems to be a discrepancy between the old decision
R
v. Tolson
(1889) 23 Q.B.D. and the
mens rea
definition
given in such text books as Smith and Hogan. In
D.P.P.
v.
Morgan,
(1975) 2 All E. R. 347, a famous
rape trial, the trial Judge had insisted that it should
have been reasonable for the accused to believe the
woman was consenting before the defendant could be
acquitted. On appeal, Lords Cross, Hailsham and
Frater he'd that this was wrong and Lords Simon and
Edmund-Davies held it was right. Lord Cross agreed
with the minority that the Tolson rule still applied. The
inconsistency remains however, and the editor is doubt-
ful of the majority decision.
The case
Hyam
v.
D P.P.,
(1975) A.C. 55, focuses on
the matter of intent. It will be recalled that the appel-
lant set fire to the house of her lover's new mistress;
two children were killed in the fire and she was con-
victed of murdering them. Here the editor considers the
majority view, as expressed by Lord Diplock, to have
been that foresight of the probable consequence of a
voluntary act constitutes an intent to cause those con-
sequences, whether they are desired or not. The con-
clusion reached is that at Common Law and, as a
general rule under a statutory provision, a man intends
the consequences of his voluntary act (i) when he de-
sires it to happen whether or not he forsees it will
probably happen, and (ii) when he foresees it will prob-
ably happen whether he desires it or not.
Still on the mental element there are many good
paragraphs under insanity and automatism. In
R. v.
Quick,
(1973)
Q.B.D.
910, where a defence of automat-
ism from an inbalance of insulin was raised the Judge
ruled that this amounted to a defence of insanity. On
appeal it was held that the alternative of automatism
should have been left to the jury, unlike the Northern
Ireland case of
Bratty,
(1963) A.C. 386, where auto-
matism was disallowed. This case also makes clear
that the fundamental underlying concept is a malfunct-
ioning of the mind caused by disease — thus a transit-
ory change of mind induced e.g. by alcohol or even
violence would not qualify. This distinction between
untrained mind as against diseased mind is commented
on in the earlier case of
R.
v.
Kemp,
(1957) 1 Q.B.D.
399. No developments are noted under irresistible im-
pu'se—it would seem this defence would not yet be as
readdy accepted as it was in Ireland in
People
v.
Hayes,
noted in Irish Jurist (N.S. Vol. 3 (1968), p. 61. Both
the book and the first supplement just missed the case
of
D.P.P. v. Majewski
(1976) 2 All E. R. 142, where
the House of Lords dismissed the appeal of assaulting
police officers on the ground that the appellant had
taken a surfeit of drugs and alcohol, because alcoholism
was not a disease of the mind wh'ch required proof
of intent. In the matter of drunkenness the editor makes
a valuable comment when he considers
R. v. Sheehan
and Moore,
(1975) 2 All E.R. 960, as a more correct
statement of the law than certain other recently decided
cases, notably
Lipmans
case, (1970) 53 Cr. App. R.
600. In
Sheehan s
case the appellants, while the worse
for drink, threw lighted petrol over the deceased and
killed him; this was held to be manslaughter. In
Lip-
man,
the appellant was guilty of manslaughter as a re-
sult of an unlawful and dangerous act, as he had so
many drugs taken at the time that he did not know
what he was doing.
Where offences against property were concerned
practitioners did not consult Archbold beyond the 36th
edition but now this has changed and the new book
will be a necessary complement to the 1976 legislation
which so substantially altered the Larceny Act which
had served the community so well for so long and which
will undoubtedly continue to do so. Similar facts and
corroboration are two recent legal watersheds which
are more than adequately dealt with in the new edit-
ion. The case
D.P.P. v. Boardman
(1974) 3 All E. R
887, is very resourceful on the similar facts concept and
in particular Lord Wilberforce's comments are well
worth reading as also are Lord Hailsham's remarks in
D.P.P. v. Kilbourne,
(1973) A.C. 729. Indeed the latter
case is very pertinent to corroboration and Lord Reid's
remarks on the rule that one accomplice cannot cor-
roborate another are interesting—he does not see the
rule as absolute and would be selective as to category
to which it would apply. The first Supplement gives
details of identification and the Devlin Report.
It is noteworthy that Archbold's pedigree goes back
to 1822, older than even the Vagrancy Act. This is an
achievement and the necessary ingredient has been the
element of continuity in the work. Much of the recent
continuity came from T.R.F. Butler who has been on
the editors panel, with only one exception, since 1931
but whose unhappy demise occurred prior to the pub-
lication of this volume. He has left a fitting memorial
in the book and one can trust with confidence that
Archbold will continue its high standard for many dec-
ades yet.
BRENDAN GARVAN.
180