In the Preface to his recent book, Samples of Lawmaking, Lord Devlin rather sadly doubted “whether judges will now of their own motion contribute much more to the development of the law. Statute,” he said, “is a more powerful and flexible instrument for the alteration of the law than any that a judge can wield.” Since those words were written Lord Devlin has himself contributed to some substantial judicial reforms of the law, notably in Rookes v. Barnard and Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., but it does, of course, remain true that it is very much easier for the legislature than for any court, however strong, to bring changes to the law. It is also true, generally at least, that when we speak of law reform we mean reform by statute and we try to formulate in a draft Bill the rules of law that we should like to see. To my mind, however, it is unfortunate that we so often try to find a formulation which provides in some detail for the particular situations we have in mind and which is designed to give the court the minimum opportunity for what is sometimes called creative interpretation. With a few exceptions—the Contributory Negligence Act and the Occupiers’ Liability Act are examples—we do not legislate in such a way as to give the judges a new principle expressed in general terms and leave it to them to work out the application of that principle in the cases that arise.

No expert long range forecast is needed to predict that in the near future a wind of change of a velocity and a turbulence hitherto unknown is going to sweep away many common law principles of the law of evidence regarded in the past as fundamental. In civil proceedings, the hurricane is upon us, with the thirteenth report of the Law Reform Committee, and the Civil Evidence Bill 1967, virtually providing for the abolition of the rule against first-hand hearsay and the rule against narrative, and substituting a wide discretion in the court. All the signs are that in a short time analogous reforms for criminal proceedings will be announced, and already previous statements have been rendered widely admissible by the Criminal Justice Act 1967. The object of this article is to look at the common law relating to the rule against narrative in criminal proceedings, as it is applied in England and in the United States, and to make a few comments on the procedure introduced by section 9 of the Criminal Justice Act 1967.

The rule against narrative is sometimes called the rule against self-corroboration. This is misleading, in that a witness can never corroborate himself where corroboration is required by any rule of law or practice. In the thirteenth report, the first description is said to be a misnomer, but a helpful summary of the rule is given: “what the witness himself said outside the witness-box is not evidence.” Wills describes the rule in this way: “… the witness may not repeat to the Court his own previous narratives or statements concerning the relevant facts made to other persons out of Court; when he is in the witness-box he must take his mind back, directly so to speak, to the facts he is called to prove, and must give to the Court his present recollection of those facts.”

The law surrounding the doctrine of act of state is perhaps one of the most confusing parts of constitutional law, for both its meaning and application are susceptible of several different interpretations. In particular the rule that act of state can be no defence against an action by a British subject, or, to put it more precisely, that there can be no act of state between the Crown and a British subject is one whose limits are not entirely clear. The recent case of Naim Nissan v. Attorney-General has brought the matter to the fore in what is thought to be a novel situation, wherein the question arose whether act of state can be a defence to an action by a British subject if the act has been executed by the Crown outside the Crown's dominions. The case gave rise to a difference of opinion between the judge at first instance and the Court of Appeal, and now that leave to appeal has been granted to the House of Lords, there arises an opportunity to examine act of state in several of its aspects.

In this discussion it will be argued that the law as it appears now to stand is not necessarily a correct interpretation of the precedents, and that if it is, occasion now presents itself for a fresh formulation of the rules upon a more logical and up-to-date basis.

It is first proposed to explain what is meant by the term “act of state” in this context, to try to establish its relationship with the prerogative, and to examine two aspects of it, that is (i) where a claimant is attempting to use an act of state as the foundation of his action, and (ii) where the Crown is attempting to defeat an action by an individual by the plea of act of state.

The recent trend towards the socialisation of legal studies has not unnaturally caused a good deal of confusion and disagreement on the role of jurisprudence. However, since the law is centred on dispute and argument, there can be little real objection to the extension of the process to the philosophy of law. Still it would be difficult to devise a less immediately appealing way of re-establishing and reviving the subject of jurisprudence than another dose of the schools, or another tendentious review of contemporary exponents. My excuses for doing just that are not even particularly novel—an appreciation of the importance of the pressures towards an empirical approach to law and legal studies, and the usual desire to get some of the more distracting flies safely corked back again into their bottles. However, the total failure of the recent Cambridge Committee on the Organisation of the Social Sciences to produce even the outline of an overall structure for the integrated study of the law as an important means of social control does at least provide a suitable opportunity for the re-examination of the role of jurisprudence.