¹ Baxter (1971) 55 Cr.App.R. 214 at p. 220.Google Scholar

² See Russell on Crime (12th ed., 1964), Vol. 2, pp. 926–947.Google Scholar

³ [1961] 1 Q.B. 394. Mella v. Monahan [1961] Crim.L.R. 175Google Scholar, gave the same answer to a similar problem under s. 2 (1) of the Obscene Publications Act 1959. The law was amended by the Obscene Publications Act 1964, s. 1 (1).

⁴ At p. 399.

⁵ Ibid.

⁶ [1968]) 1 W.L.R. 1204.

⁷ [1970] 1 W.L.R. 838.

⁸ Eighth Report (Cmnd. 2977), p. 19.

⁹ [1938] 1 K.B. 49.

¹⁰ At p. 61.

¹¹ (1856) 1 H. & N. 210 at p. 215.

¹² Tote Investors Ltd. v. Smoker [1968]Google Scholar 1 Q.B. 509 (C.A.).

¹³ Section 16 makes it an offence by deception to reduce, evade or defer a debt, “including one not legally enforceable.” This probably includes void and illegal “debts” as well as debts which are merely unenforceable in the narrow sense: see the author's Law of Theft, paras. 325–328; Aston and Hadley [1970] 3 All E.R. 1045Google Scholar at p. 1047 (C.A.). The gist of the offences under this section however lies in the deception. The defendant is guilty not because he refuses to pay or avoids payment of the “debt,” but because he dishonestly persuades the “creditor” to reduce, forgive or defer the debt.

¹⁴ [1969] 2 Q.B. 400.

¹⁵ Pharmaceutical Society of Great Britain v. Boots Cash Chemists [1953] 1 Q.B. 401.Google Scholar

¹⁶ At p. 411.

¹⁷ [1958] Crim.L.R. 92.

¹⁸ At p. 411.

¹⁹ [1905] 2 K.B. 273.

²⁰ Cf. Hartog v. Colin and Shields [1939] 3 All E.R. 566.Google Scholar

²¹ (1913) 9 Cr.App.R. 220.

²² [1955] 1 W.L.R. 1 at p. 4.

²³ [1959] 1 Q.B. 11 at p. 20.

²⁴ Bowmakers Ltd. v. Barnet Instruments Ltd. [1945] K.B. 65Google Scholar at p. 71 (C.A.) per du Parcq L.J.

²⁵ Ibid. at p. 72.

²⁶ The defence that the weighbridge operator was too inferior a servant to fix the Board with liability was not raised. Had it been raised, it would surely have succeeded.

²⁷ See the discussion of the cases by Professor Williams, Glanville, The Criminal Law, The General Part (2nd ed., 1961), pp. 370–380.Google Scholar

²⁸ Ibid.

²⁹ (1813) 5 Taunt. 181.

³⁰ The Law of Contract (3rd ed.) 358, n. 31. Williston's view of English law is the same as Treitel's: Contracts, Revised Ed., Section 1754–1756. The subject has not received detailed consideration from English writers on the law of contract.

³¹ The writer has previously defended the view that the seller is always liable when he knows of the buyer's illegal purpose at the time of making the contract: Smith & Hogan, Criminal Law (2nd ed.) 85–86; but the present re-examination of National Coal Board v. Gamble demonstrates the attractiveness of Professor Williams's view as to what the law should be.

³² Perkins, Criminal Law, p. 577.

³³ [1927] A.C. 487.

³⁴ [1926] 1 K.B. 366.

³⁵ [1926] 2 K.B. 51.

³⁶ [1926] 2 K.B. at p. 70–71.

³⁷ Pearson v. Rose and Young [1951] 1 K.B. 275.Google Scholar

³⁸ Above, p. 201.

³⁹ [1948] 2 K.B. 142.

⁴⁰ (1722) 1 Stra. 505.

⁴¹ (1851) 21 L.J.Q.B. 75.

⁴² [1945] K.B. 509.

⁴³ (1886) 33 Ch.D. 562.

⁴⁴ [1896] 2 Q.B. 44.

⁴⁵ At pp. 149–150.

⁴⁶ [1971] 2 All E.R. 441.

⁴⁷ At p. 442.

⁴⁸ At p. 443.

⁴⁹ Theft Act 1968, s. 21 (1); Smith, Law of Theft [428]–[432].

⁵⁰ Parker (1910) 74 J.P. 208.Google Scholar

⁵¹ Statutes of Forcible Entry, 1381–1623; Russell on Crime (12th ed.), Chap. 15.

⁵² One solution to the case of the dishonest man who, unknown to himself, has done no more than assert a legal right is to hold him guilty of an attempt. In these cases he is making a mistake of law. Mistake as to the criminal law is not generally a defence to a charge of crime, but it is thought that mistakes of the civil law may sometimes indirectly amount to defences by precluding the accused from having mens rea in acting as he did: Smith & Hogan, Criminal Law (2nd ed.), pp. 48–51. We are here concerned with the converse situation. D has mens rea because he is mistaken as to the civil law. A mistake as to the criminal law should certainly not result in a conviction. For example, D, who believes that it is an offence to have sexual intercourse with girls under the age of eighteen, has intercourse with P whom he knows to be only seventeen. He can scarcely be convicted of attempting to have intercourse with a girl under the age of sixteen. The offence would have to be described as attempting to have intercourse with a girl under the age fixed by statute. This would be a new departure and an unnecessary and undesirable one. (Cf., however, Brett, An Inquiry into Criminal Guilt, pp. 125–129.) Less objectionable, however, is the case where the accused's mistake relates not to the nature of the criminal offence but to a rule of the civil law. An example is Deller (1952) 36 Cr.App.R. 184.Google Scholar Deller who had purported to mortgage his car then induced P to buy it by representing that it was free from encumbrances. Unknown to Deller, it was free from encumbrances since the mortgage, being an unregistered bill of sale, was void. His conviction for obtaining was quashed. There was no false pretence. Recent cases (though on very different facts) suggest that he might have been convicted of an attempt: Millar and Page (1965) 49 Cr.App.R. 241Google Scholar; Crispin [1971] Crim.L.R. 229.Google Scholar The overpaid punter is in a similar situation if he believes he under a legal obligation to repay. So, clearly, was Turner. A conviction for attempt avoids some of the objections to a conviction for the full offence. The Criminal Court no longer asserts that the actual situation amounts to an offence but that the situation would have amounted to an offence had it been as the accused believed it to be.

⁵³ See Dias, Jurisprudence (3rd ed., 1970), pp. 248 et seq.; Salmond, Jurisprudence (12th ed., 1966), p. 224.

⁵⁴ (1871) L.R. 6 Q.B. 597.

⁵⁵ The writer has some difficulty in seeing how it can stand if Solle v. Butcher [1950] 1 K.B. 671Google Scholar, and Grist v. Bailey [1967]Google Scholar Ch. 532, are rightly decided.

⁵⁶ At p. 604.

⁵⁷ [1937] 2 K.B. 158. The case was criticised on similar grounds by C. K. Allen in 54 L.Q.R. 201.

⁵⁸ [1926] Ch. 932.

⁵⁹ Above, p. 212.

⁶⁰ At p. 939. The cases quoted do not say that there is misrepresentation where personal considerations are present, only that the alleged undisclosed principal may not intervene. Said v. Butt [1920] 3 K.B. 497Google Scholar (McCardie J.) was a case of a sale of a theatre ticket for a first night performance. It was well known to the plaintiff, who unsuccessfully claimed to be an undisclosed principal, that the management only disposes of such tickets to those whom it selects.

⁶¹ [1936] 2 All E.R. 456 at p. 461.

⁶² (1898) 78 L.T. 445.

⁶³ (1898) 78 L.T. 34.

⁶⁴ C. K. Allen's conclusion (54 L.Q.R. at p. 215) was that Berg, though not guilty of a criminal attempt, rightly failed in his action for money had and received on the principle of ex turpi causa non oritur actio. But this cannot be reconciled with Dyster v. Randall & Sons, unless the cases are distinguishable on the facts, for the plaintiff seeking specific performance must come with clean hands. See also Professor Goodhart's postscript at p. 216.

⁶⁵ Nash v. Dix and Dyster v. Randall & Sons are accepted as correct by the books on agency: see Powell (2nd ed.) 159–162; Bowstead (13th ed.), Art. 89; Fridman (3rd ed.) 191–192; Stoljar 224–228. See also Goodhart and Hamson (1932) 4 C.L.J. 320 at 347–348. Treitel, however, thinks that an undisclosed principal should not be allowed to intervene if he knows that the third party does not want to deal with him: Law of Contract (3rd ed.), p. 642. The principle of Dyster's case is generally accepted in America according to Ferson, Principles of Agency, section 183.