1 GS McBain ‘Abolishing some obsolete common law crimes’[2009] King's Law Journal 89. The common law crimes in question comprised: (a) failure of a common innkeeper (hotelkeeper) to provide board and lodging; (b) contempt of the sovereign; (c) embracery; (d) refusing to serve in a public office.

2 I shall not deal with the crimes of treason and treason felony in this paper since I have already dealt with them in other articles; see GS McBain ‘Abolishing the crime of treason’ (2007) 81 Australian Law Journal 94 and GS McBain ‘Abolishing the crime of treason felony’ (2007) 81 Australian Law Journal 812.

3 [2003] UKHL 38, [2004] 1 AC 357 at [61].

4 The sidenote to the Act is, ‘None shall be taken upon suggestion without lawful presentment nor disfranchised, but by course of law’.

5 25 Edw 3 st 5 c 4 (emphasis added and wording divided for ease of reading). For commentary on this Act, see F Palgrave An Essay upon the Original Authority of the King's Council (Commissioners of Public Records, 1834) pp 35–36; Stephen, Fj A History of the Criminal Law of England vol 1 (London: Macmillan, 1883) p 170 Google Scholar; Dicey, Av The Privy Council (London: Macmillan & Co, 1887) p 22 Google Scholar; Baldwin, Jf The King's Council in the Middle Ages (Oxford: Oxford University Press, 1969) p 279 Google Scholar; Plucknett, T A Concise History of the Common Law (London: Liberty Fund, 5th edn, 1956) p 187 Google Scholar; W Lambarde Archeion (EP for Henry Seile, 1635) pp 58–61.

6 Law Commission Statute Law Revision. Criminal Law Repeals Proposals January 2005. A copy is available on their website, available at http://www.lawcom.gov.uk.

7 Petitions or suggestions were often made to the king alone or conjointly with his council; see Palgrave, above n 5, p 62: ‘The functions delegated to the judges of the king's bench were not unfrequently exercised by the sovereign as late as the reigns of Edward I [(1272–1307)] and II [(1307–1327)] and in Parliament and the Council we find the personal jurisdiction of the king extending until a subsequent period’. Prohibitions del Roy (1608) 12 Co Rep 64 (77 ER 1342) is taken as establising that the king himself could not decide any criminal or civil case.

8 Coke, E Institutes of the Laws of England vol 1 (London: W Clarke & Sons, last edn, 1824) pt 2, p 126b Google Scholar. An indictment is an accusation or declaration at the suit of the king for some offence, found by a proper jury of 12 men. It was a written (as from the time of Edward I (1272–1307)), formal, statement of charge. See Stephen, Jf A General View of the Criminal Law of England (London: Macmillan, 1863) p 24 Google Scholar; also see Baker, J An Introduction to English Legal History (London: Butterworths, 4th edn, 2002) p 505 Google Scholar; R v Clarke [2008] 1 WLR 338.

9 As the Law Commission point out, above n 6, p 3, fn 4, a presentment was a report, or accusation, made by a grand jury or other body of men (eg neighbours of the accused). A presentment was different from an indictment in that it was notice taken by a grand jury of any offence from their own knowledge or observation without any bill of indictment being laid before them at the suit of the Crown. See W Lambarde Eirenarcha (R Newbery & H Bynneman, 1581) bk 2, ch 5; also Bacon, M New Abridgment of the Law vol 3 (London: A Strahan, 5th edn, 1798) p 542 Google Scholar.

10 Walker, Pm The Oxford Companion to Law (Oxford: Oxford University Press, 1980)Google Scholar (definition of original writ: a ‘mandatory letter from Chancery, running in the name of the sovereign and under the great seal, addressed to the sheriff of the county, setting out briefly the cause of complaint and requiring the sheriff to command the defendant to satisfy the claim and if he did not, to summon him to appear in one of the superior common law courts’). See Baker, above n 8, ch 4, for the historical context.

11 A franchise (also called a liberty) was a right held by royal grant; eg a right to hold a court or a fair. See Walker, above n 10 (franchise); see also Blackstone, W Commentaries on the Laws of England vol 2 (Oxford: Clarendon, 1st edn, 17651769) p 37 Google Scholar. However, in this Act (and Magna Carta) it is contended that franchises (liberties) had a more expansive meaning; see Coke, above n 8, vol 2, p 47. Also see Creasy, E The Rise and Progress of the English Constitution (London: R Bentley & Son, 17th edn, 1892) p 151 Google Scholar (following Coke) where he states ‘“liberties” has several significations, as the laws of the realm, privileges bestowed by the king, and the natural freedom possessed by the subjects of England'. See also McKechnie, Ws Magna Carta (Glasgow: J Macleshose & Sons, 1914) pp 383–384 Google Scholar.

12 See the texts cited in n 5. The early history and legal functions of the King's Council are obscure. Palgrave, above n 5, p 19, asserts that in the early period, ‘The functions of the Council… were entirely analagous to those of a modern court of king's bench [this is a reference to the position, pre-Judicature Act 1873], into which channel a considerable portion of the authority of the Council has been diverted. Most of the writs or commissions now issued by the Court of Chancery, or by the king's bench, upon petition, motion, or suggestion, had anciently emanated from the king's council’. See also Stephen, above n 5, p 167 and Walker, above n 10 (extracts on the King's Council and on the Privy Council).

13 Palgrave, above n 5, p 34 and Dicey, above n 5, p 7. See also Baldwin, above n 5, ch 11 and Stephen, above n 5, p 169.

14 For general texts on Edward III, see Waugh, S England in the Reign of Edward III (Cambridge: Cambridge University Press, 1991)CrossRefGoogle Scholar and Ormrod, W The Reign of Edward III (Stroud: Tempus, 2005)Google Scholar.

15 Palmer, Rc English Law in the Age of the Black Death 1348–1381 (Chapel Hill: Unversity of North Carolina Press, 1993) pp 2 and 10.Google Scholar

16 See Stephen, above n 5, vol 1, p 171 and Palgrave, above n 5, p 35. See also Rot Parl ii 228. The Parliament Rolls (1272–1504) are now on a CD Rom produced by Scholarly Digital Editions, as well as online; see the website available at http://www.sd-editions.com.

17 See Plucknett, above n 5, p 187; Stephen, ibid, vol 1, p 170 and Baldwin, above n 5, p 279.

18 Baldwin, ibid, pp 281–286 and Plucknett, ibid pp 176–181.

19 Baldwin, ibid, pp 286–288. See also Law Commission, above n 6, p 3, fn 4 and Lambarde, above n 5, p 64.

20 The petition of 1350, above n 16, mentioned ‘informations’ (apposailles ). As the Law Commission note, above n 6, p 2, this method of procedure avoided the use of a grand jury and could be hazardous for defendants who were out of favour or who had powerful enemies. Proceeding by way of information by a private individual through the sovereign's coroner (or ex officio by the Attorney General or Solicitor General) has been abolished (Administration of Justice (Miscellaneous Provisions) Act 1933, s 12 and Criminal Law Act 1967, s 6(6)), as has another method of criminal prosecution in those days, proceeding by way of appeal (abolished by 59 Geo III c 46 (1873)). For a useful note on the various means of prosecution in early times, and their repeal, see Stephen, Hj Commentaries on the Laws of England vol 4 (London: Butterworths, 18411845) ch 18.Google Scholar Also see Plucknett, above n 5, p 430.

21 Baldwin, above n 5, p 286 who refers to the Calendar of Close Rolls, 39 Edw III (1364), 181.

22 W Hudson Treatise of the Court of Star Chamber (1621, reprinted in Birmingham: Legal Classics Library, 1986) p 12: ‘surely [it] was the apprehension of the body by pursuivant, and so detaining him from [ie to] answer for the same before the king’. The side note to the Law Presentment Act 1351 (see above n 4) refers to ‘suggestion without lawful presentment’(although caution needs to be taken with sidenotes). Hudson, p 13, is careful to suggest that the letter of privy seal (by which a party was often summoned before the King's Council) was a legitímate legal form, being an original writ. So did Coke, above n 8, vol 4, p 63 and Stephen, above n 5, vol 1, p 170. See also DR Mummery ‘Due process and inquisitions’ (1981) 97 LQR 287 and 3 Hen 7 c 1 (1487). It referred to the Court of Star Chamber on a ‘bill or information' being able to summon persons before them by’ writ or privy seal'. In light of this, it is unlikely the Law Presentment Act 1351 was intended to prescribe petitions, informations or letters issued under the privy seal. Thus, suggestions would seem to be the culprit – as Hudson alleges. See also 37 Edw III c 18 (1363, rep) and 38 Edw III c 9 (1364, rep) (which Acts also dealt with irregular suggestions).

23 Magna Carta (1215) c 39; (1225) c 29; (1275, 2 Edw 1) c 29. For commentary on Magna Carta, c 29, see Coke, above n 8, vol 4, pp 45–56 and McKechnie, above n 11, pp 375–395. Also see P Taswell-Langmead English Constitutional History (Oxford: Sweet & Maxwell, 11th edn, 1960) ch 4.

24 Alternative wording is ‘deal with him ’. See Halsbury's Statutes of England vol 10 (London: Butterworths, 4th edn, 1972). Possibly, the word ‘judgment ’ should be read in after the word ‘pass ’.

25 It is asserted that ‘ousted ’ in the Law Presentment Act 1351, ch 4 has the same meaning as ‘disseized ’ in Magna Carta, ch 29 and that ‘franchises ’ in the former has the same meaning as ‘liberties ’ in the latter (see also Confirmation of Liberties 1423, c 1 and Coke, above n 8, vol 4, p 47); also that ‘duly brought into answer, and forejudged of the same by the course of the law ’ in the Law Presentment Act 1351, ch 4 has the same meaning as ‘lawful judgment… by the law of the land ’ in Magna Carta, ch 29 – both being synonyms for ‘by due process of law ’ (see Coke, above n 8, p 50; McKechnie, above n 11, pp 379–381 and Relf, Fh The Petition of Right (Minnesota: University of Minnesota, 1917) p 12 Google Scholar.

26 Coke, above n 8, vol 2, pp 45–46. He also comments: ‘No man shall be disseised etc. Hereby is intended that lands, tenements, goods, and chattels shall not be seized into the king's hands, contrary to this great charter, and the law of the land; nor any man shall be disseised of his lands, or tenements, or dispossed of his goods, or chattels, contrary to the law of the land’. Taswell-Langmead, above n 23, pp 114–115 deals with the close connection between this Act (and those considered in sections 2 and 3) and Magna Carta, ch 29.

27 Coke, ibid, pp 45–46. In the margin, Coke referred to: 5 Edw 3 c 9 (1331, rep), 25 Edw 3 c 4 (ie Law Presentment Act 1351, c 4), 37 Edw 3 c 18 (1363, rep), 38 Edw 3 c 9 (1364, rep), 42 Edw 3 c 3 (ie None shall Answer without Due Process of Law 1368), 17 Ric 2 c 6 (1393, rep), Rot Parl 43 Edw 3 (1369) ii 304 (see above n 16; this statute confirmed Magna Carta in all its points), Sir John Lee's Case (1368) (see below nn 54–55) and the Case of Marshalsea (1613) 10 Coke's Reports 68a (77 ER 1027) (see, in particular, 74a–b). See also Coke, ibid, vol 2, p 50 where he, again, equates the Law Presentment Act 1351, ch 4 with Magna Carta, ch 29. Creasy, above n 11, follows Coke, ‘the word “taken”[in Magna Carta, c 29] signifies also being restrained of liberty by petition or suggestion to the king or his council’.

28 Walker, above n 10 (extract on Magna Carta) and Taswell-Langmead, above n 23, p 91. McKechnie, above n 11, p 380 referring to the Law Presentment Act 1351 and None to Answer without Due Process of Law Act of 1368 (see section 3) notes that ‘An important series of [statutes] passed in the reigns of Edward III and Richard II, shows how per legem terrae of 1215 [in Magna Carta] was read in the fourteenth century as equivalent to “by due process of law”, and how the Great Charter was interpreted as prohibiting the trial of men for their lives and limbs before the King's Council on mere informal and irresponsible suggestions, sometimes made loosely or from malicious and interested motives’.

29 The grand jury in England ceased functioning in 1933 and was abolished by the Criminal Justice Act 1948.

30 Baker, above n 8, p 68. To the extent that the Act of 1368 sought to prevent informations being brought before the King's Council it was unsuccessful. Private Informations via the sovereign's coroner have now been abolished, see above n 20.

31 In 1969, the Law Commission proposed the abolition of this Act – as well as the Acts mentioned in sections 2 and 3– on the basis that they simply reaffirmed Magna Carta, ch 29 and were now only of historical interest. See LC No 22 Statute Law Revision First Report, Cmnd 4052, p 33. However, the Fourth Report by the Joint Committee of the House of Lords and the House of Commons on the Statute Law (Repeals) Bill, HL 60-IV, 148-I, HC 382-1 (1969) decided otherwise on the basis that it might still have some ‘practical utility’. But, it is clear from the report that the Committee was not given any detailed explanation of these Acts. This paper seeks to remedy this omission.

32 R v Clarke, above n 8. The bill of indictment (by oversight) was only signed after the evidence had closed, when the jury was about to retire. See also PG Turner ‘Indictable offences tried without an indictment’[2009] King's Law Journal 145.

33 Halsbury's Laws of England vol 10 (London: Butterworths, 4th edn, 1991) para 401 et seq. See also Stephen, above n 5, p 166 and Law Commission, above n 6, p 1, n 1. The Law Commission, above n 6, p 4, states ‘There is no modern equivalent of the King's Council to usurp the judicial function of the criminal courts in determining whether a person is guilty or what the penalty should be’.

34 Judicial Commitee Act 1833. See also Stephen, above n 5, p 183.

35 16 Cha 1 c 10. The criminal jurisdiction of the Privy Council as committing magistrates (which was exercised up to the last century) is spent. See Stephen, ibid, vol 2, p 183.

36 Law Commission, above n 6, p 1.

37 Article 5(1) includes the following, ‘Everyone has the right to liberty and the security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after his conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his commiting an offence or fleeing after having done so’. ‘Petition or suggestion made to our lord the king, or to his council’ would not today fulfil this requirement since neither the sovereign nor her Privy Council (save for the Judicial Committee) constitute, per se, ‘a competent court’ or a ‘competent legal authority’.

38 In particular, Art 6 states,‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair trial and public hearing within a reasonable time by an independent and impartial tribunal established by law’. ‘Petition or suggestion made to our lord the king, or to his council’ would not today fulfil this requirement since neither the sovereign nor her Privy Council (save for the Judicial Committee) constitute, per se, ‘an independent and impartial tribunal established by law’.

39 This includes land and franchises. See generally Janis, M, Kay, R and Bradley, W European Human Rights Law (Oxford: Oxford University Press, 2008) ch 10.Google Scholar

40 This is an important point which, with respect to the Law Commission in 2005, it, perhaps, failed to emphasise. See above n 6 pp 1–5.

41 28 Edw 3 c 3. It has the sidenote, ‘None shall be condemned without due process of law’.

42 Tenement is a right which is subject to tenure, such as land (a corporeal hereditament) as well as rents or other profits granted out of land (incorporeal hereditaments). See Walker, above n 10 (defintion of tenement).

43 See also above n 24.

44 Coke, above n 8, vol 4, p 48: ‘No man destroyed etc. That is, forejudged of life, or limb, disinherited, or put to torture, or death’. Coke made reference to the fact that ‘destroyed’ in Magna Carta, ch 29 was supplemented by the words ‘aliquo modo ’ (‘in any manner’) and therefore had wider significance than just to a reference to a man being killed. See also Creasy, above n 11, p 152.

45 See my comments in n 40. Also, the Law Commisson's proposal to repeal this Act in 1969, above n 31.

46 Article 2(1): ‘Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction for a crime for which this penalty is provided by law’. In any case, the UK has abolished the death penalty.

47 See nn 37–39.

48 42 Edw 3 c 3 (emphasis added and wording divided for ease of reading). The Act is also sometimes called the Observance of Due Process of Law Act 1368.

49 Halsbury's, above n 24, vol 12(1) notes an alternative wording of ‘others’.

50 The King's Council was not a court of record. See generally SE Thorne ‘Courts of record and Sir Edward Coke’ (1937) 2 University of Toronto Law Journal 24.

51 See n 10 in respect of original writs.

52 Coke, above n 8, vol 2, p 50 also cites 28 Edw 3 c 3 (Liberty of Subject Act 1354; see section 2), and 37 Edw 3 c 8 (1363, rep).

53 Dicey, above n 5, p 22. If so, it failed. See Stephen, above n 5, p 170.

54 The White Chamber was a building within the Palace of Westminster where the lords retired for their discussions in Edward's III's time. See The Palace of Westminster House of Commons Factsheet G11 (General Series, May 2009).

55 Sir John was imprisoned. See Rot Parl ii 297, above n 16. See also Oxford Dictionary of National Biography (ODNB) (extract on Sir John Lee) and Ormrod, above n 14, p 44.

56 Coke thought there was some connection to Sir John Lee's case; see note below.

57 Coke, above n 8, vol 2, p 50. Coke also refers to Sir John Lee's Case (above n 55) and says of the Act of 1368 ‘this chapter is but declaratory of the old law of England’. See also Coke, ibid, vol 2, pp 45–46 and Creasy, above n 11, p 152. The words ‘put to answer ’ (mis arespondre ) in the Act of 1368 are not clear. However, one would assert that they are covered by the words in Magna Carta, ch 29 ‘pass upon him, nor [condemn him]’ and that both probably connote that a man shall not be ‘tried’ (ie made to answer) nor ‘judged’ (condemned) save by due legal process. See also Mummery, above n 22, at 295 citing Ex p Walker (1924) 24 SRNSW 604 at 616 per Ferguson J.

58 Coke, ibid, p 50.

59 Rot Parl, above n 16, ii 295 ‘Purce qe ceste article est article de la grande chartre, le roi voet qe ceo soit fait come la peticion demande’. See also n 16.

60 See above nn 29 and 30.

61 See above nn 37 and 38. Mummery, above n 22, in an article witten in 1981 asserted that, despite the King's Council (in the form of the Star Chamber) being abolished in 1641 (by 16 Cha 1 c 10, itself now repealed) the Act of 1368 still had some vitality (at 331 ‘charged with new content’). However, it is difficult to accept this (regardless of the fact that he was writing before the ECHR) for these reasons: (a) at 295, he states ‘leaving aside its [ie the Act of 1368's] precise relation to Magna Carta’. He then goes on to analyse the 1368 Act without reference to the same. However, manifestly, the 1368 Act must be considered in relation to Magna Carta, ch 29 – as the assent to the Act of 1368 makes clear (above n 59); (b) he seeks to assert that the 1368 Act states a general proposition (in essence, that no man should be tried other than by due legal process before a competent court); however, the preamble to the 1368 Act makes it clear that it was passed in the context of persons being taken before the ‘King's Council by writ, and otherwise ’; (c) he alleges that the repeal of 16 Cha 1 c 10, abolishing the Star Chamber, is, in some way, ‘per incuriam ’ and that courts should still take some notice of it; however, English courts do not do so in respect of repealed legislation and even he admits (at 318) that this is a difficult proposition for lawyers to accept; (d) even if his thesis is correct and the Act of 1368 still has vitality, it says no more than Magna Carta, ch 29; however, the latter's wording is more expansive and it is of greater value to assert his thesis; (e) the Act of 1368 was very much a creature of its time – as are the Acts mentioned in sections 1 and 2 – and to take them wholly out of their historical context is not appropriate. It may also be noted that Mummery does not cite any case after 1641 (abolition of the Star Chamber) decided on the basis of the Act of 1368. Indeed, I cannot find any case expressly decided on the basis of any of the Acts of 1351, 1354 and 1368 (sections 1–3) either before or after 1641. This lends support to the proposition that most lawyers (like Coke) viewed these Acts as confirmations of Magna Carta, ch 29. See also the proposal of the Law Commission in 1969, to repeal this Act of 1368, above n 31.

62 Statutory Declarations Act 1835, 5 & 6 Will c 62 s 13 (emphasis added). See also PJ Richardson Archbold: Criminal Pleading, Evidence and Practice (London: Sweet and Maxwell, 2009) para 28–225; Halsbury's, above n 23, vol 18 and Russell, Wo On Crime (London: Stevens, 12th edn, 1964) p 233 Google ScholarPubMed. The continued worth of a number of other provisions of this Act need to be considered.

63 Ibid, s 7: ‘Provided also that nothing in this Act contained shall extend or apply to any oath, solemn affirmation or affidavit, which now is or hereafter may be made or taken, or be required to be made or taken, in any judicial proceeding in any court of justice, or in any proceeding for or by way of summary conviction before any justice or justices of the peace, but all such oaths, affirmations and affidvits shall continue to be required, and to be administered, taken and made, as well and in the same manner as if this Act had not been passed’.

64 4 QBD 768 (114 ER 1087) and Car & M 288 (174 ER 510).

65 The defendant (a JP) laid before the bishop of Exeter a complaint about the conduct of two clergyman in his diocese. He caused certain persons to make depositions before him and, inadvertently, he administered an oath. However, the indictment failed to identify adequately the grounds for asserting that he was acting outside his jurisdiction.

66 4 QBD 768 (114 ER 1087) at 780 per Denman CJ: ‘Whether any criminal proceeding can be instituted for disobeying this prohibition it is not necessary to enquire’.

67 (1911) 6 Crim App R. Shaw was convicted of having taken a false oath with a fraudulent intent in a matter of public concern. This was a misdemeanour at common law if the oath was administered by a person having authority to administer it. He appealed on the basis that the two licensing JPs in question had no authority to administer the oath. This was upheld.

68 Richardson, above n 62, para 28–227.

69 Kenny, Cs Outlines of Criminal Law (Cambridge: Cambridge University Press, 19th edn, 1966)Google Scholar, writing in 1966:‘It is an offence now almost unknown in our courts’.

70 Richardson, above n 62, para 25–46. See also Blackstone's Criminal Practice 2009 (Oxford: Oxford University Press, 2009): ‘An Act of piracy committed without the aggravating acts described within s 2 is punishable by imprisonment and a fine at common law’.

71 7 Wm 4 & 1 Vict c 88 s 2. Words in brackets were substituted by the Crime and Disorder Act 1998, s 36(5). The Piracy Acts 1698 and 1721 have been repealed. See also Stephen, above n 5, vol 2, pp 18–22 and Russell, above n 62, pp 1533–1539.

72 See Halsbury's, above n 24, vol 12(1) and Halsbury's, above n 33, vol 18(2), para 732 and vol 4(1), para 739n. See also Richardson, above n 62, paras 25–38 et seq.

73 Merchant Shipping and Maritime Security Act 1997, Sch 5 defines ‘piracy’ as consisting of ‘any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any state; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in sub-paragraph (a) or (b)’.

74 Aviation and Maritime Security Act 1990, s 9(1). There is an exception in the case of naval, customs and police vessels; ibid, s 9(2). Conviction on indictment is imprisonment for life.

75 Ibid, ss 11 and 12. Conviction on indictment is imprisonment for life.

76 Ibid, s 14(2).

77 The Law Commission has come to the same conclusion – mainly on the basis of the 1990 Act, s 14(2). See Law Commission, above n 6, p 44. If this section is repealed, the remainder of the Piracy Act 1837 can also be repealed.

78 2 & 3 Vict c 71 s 27. (wording divided for ease of reading). Also s 28: ‘It shall be lawful for any magistrate to order that any goods unlawfully… exchanged, which shall be brought before him, and the ownership of which shall be established to the satisfaction of such magistrate, shall be delivered up to the owner by the party with whom they were so unlawfully… exchanged, either without compensation or with such compensation to the party in question as the magistrate may think fit’. See also Halsbury's, above n 33, vol 12(1). F Turner The Contract of Pawn (1866) p 9 notes of ss 27 and 28: ‘This is still law, though later statutes have rendered it less important than formerly’. For the origin of this legislation see 1 Jac 1 c 21 (1603) s 5.

79 London Government Act 1963, s 76. The metropolitan police district consists of Greater London excluding the City of London, the Inner Temple and Middle Temple. See also Halsbury's, above n 24, vol 26.

80 Torts (Interference with Goods) Act 1982, s 11(2). See also Halsbury's, above n 33, vol 36(1), para 138. See also GS McBain ‘Codifying the law on consensual security’ (2007) 21(1) Commercial Law Quarterly 44.

81 See n 79.

82 Metropolitan Police Act 1839, s 55. See also Halsbury's, above n 24, vol 38. The punishment is a fine of £200.

83 Halsbury's, above n 24, vol 12(1). See, in particular, Firearms Act 1968, s 16 (possession of firearm with intent to injure), s 19 (carrying a firearm in a public place) and s 21A (firing air weapon beyond premises). See also Prevention of Crime Act 1953, s 1(1) (offence for a person to have, without lawful authority or reasonable excuse, an offensive weapon in a public place).

84 Presumably, a person would risk losing their firearms certificate in any case.

85 Ibid, s 58: ‘every person who shall be guilty of any violent or indecent behaviour in any police station house, shall be liable to a penalty of not more than [level 1 on the standard scale] for every such offence, or may be committed, if the magistrate before whom he shall be convicted shall think fit instead of inflicting on him any pecuniary penalty, to the house of correction for any time not more than [1 month]’.

86 Ibid, s 61: ‘It shall be lawful for any constable belonging to the metropolitan police force to destroy any dog or other animal reasonably suspected to be in a rabid state, or which has been bitten by any dog or animal reasonably suspected to be in a rabid state’. This is adequately covered by the Animals Act 2006, s 18(4) (destruction of an animal in distress by an inspector or constable). See also s 13 (control orders) and the Dangerous Dogs Act 1989 s 1 and Environmental Protection Act, s 149. There is no need now for a provision to just deal with the MPD.

87 Ibid, ss 54 and 60. The punishment for these offences is a fine of £500 (ie level 2 on the standard scale).

88 Metropolitan Police Act 1839, s 54(3). See also Halsbury's, above n 24, vol 18.

89 Public Health Act 1875, s 171(1) and (4).

90 Town Police Clauses Act 1847, s 29: ‘… every person guilty of any violent, or indecent, behaviour in any police office or any police station, within the limits of the special Act, shall be liable to a penalty not exceeding [level 1 on the standard scale] for every such offence, or in the discretion of the justice before whom he is convicted, to imprisonment for a period not exceeding [1 month] ’. The wording in italics is repealed by the Criminal Justice Act 2003, s 332, Sch 37, pt 9 as from a day to be appointed.

91 Ibid, s 28. Eg: ‘Every person who keeps any pigstye to the front of any street, not being shut out from such street by a sufficient wall or fence, or who keeps any swine in or near any street, so as to be a common nuisance’.

92 See also Halsbury's, above n 24, vol 38.

93 Town Police Clauses Act 1847, ss 25–27. See also Halsbury's, above n 24, vol 38 and vol 13, p 1288: ‘Pound-breach may be regarded as virtually obsolete’. See also Kruse, J Powers of Distress (London: Wildy, Simmonds & Hill, 2009) p 21 Google Scholar.

94 It may be noted that this Act also replicates crimes found in other legislation; eg the ‘furious’ driving (ie racing) of carriages: Town Police Clauses Act 1847, s 61, ‘If the driver or any other person having or pretending to have the care of any such hackney carriage be intoxicated while driving, or if any such driver or other person by wanton and furious driving, or by any other wilful misconduct, injure or endanger any person in his life, limbs, or property, he shall be liable to a penalty not exceeding [level 1] on the standard scale’. Cf s 28: ‘Every person who rides or drives furiously any horse or carriage, or drives furiously any cattle’.Cf Offences Against the Person Act 1861, s 35: ‘Whosoever, having the charge of any carriage or vehicle, shall by wanton or furious driving or racing, or other wilful misconduct, or by wilful neglect, do or cause to be done any bodily harm to any person whatsoever, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labour’. These sections need to be consolidated and duplicated material removed.

95 Section 3: ‘This Act shall apply to all stores under the care, superintendence, or control of a Secretary of State… or any public department or office, or of any person in the service of Her Majesty, and such stores are in this Act referred to as Her Majesty's stores. The Secretary of State,… public department, office, or person having the care, superintendence, or control of such stores, are herein-after in this Act included in the expression public department’. Section 2: ‘In this Act, the term “stores” includes all goods and chattels, and any single store or article’.

96 38 & 39 Vict c 25 s 8. See also Russell, above n 62, p 1150.

97 The reference to ‘steam factory yards’ includes a reference to aircraft factories and after the words ‘volunteer antillery’ there are inserted the words ‘or from any aerodrome used by the Air Force, see the Air Force (Application of Enactments (No 2) Order 1918, SR & O 1918/548 as amended by SI 1964/488’. See Halsbury's, above n 33, vol 11(1), para 543.

98 Potentially, it can also include 2 months' imprisonment. However, this has been repealed from a date to be determined: Richardson, above n 62, para 28–228.

99 Official Secrets Act 1911, s 3 (place for the storage of munitions). It is a crime if any person, for any purpose prejudicial to the safety or interests of the State, enters a prohibited place. See also Halsbury's, above n 33, vol 11(1), paras 478–479.

100 The Treason Act 1351 is often asserted to be the earliest crime on the statute books. However, this one is even older since it clearly envisages some form of criminal punishment.

101 7 Edw II (emphasis added). See Halsbury's, above n 24, vol 32 (which provides the alternative wording referred to in the fns below). As Halsbury notes, the English title to this Act is taken from old translations. The title in the margin of the roll is ‘Statutu sup’ Aportam'to Armor'. It is also called the Coming Armed to Parliament Act 1313. See also this Act on the website available at http://www.opsi.gov.uk.

102 Alternative wording: ‘to the lieutenant, the treasurer and the barons of the exchequer’.

103 Alternative wording: ‘should’.

104 Alternative wording: ‘treaties’. This would seem to be the obsolete word referring to a meeting or conference; see Oxford English Dictionary (definition of a treaty): ‘The treating of matters with a view to settlement: discussion of terms, conference, negotiations’. The word ‘assemblies’ was usually used to describe the meetings between Edward II (or his representatives) and the barons (or theirs).

105 Alternative wording: ‘at all times’.

106 Supplied missing word ‘without’.

107 Halsbury's omit old translations.

108 Alternative wording: ‘taking’.

109 Supplied missing word ‘it.’

110 Alternative wording: ‘wearing’.

111 Alternative wording: ‘the’.

112 Supplied missing word ‘that’.

113 Actual wording: ‘exchequer’.

114 Thomas Plantagenet (1278–1322). See ODNB, above n 55.

115 The Repudiation of the Ordinances is still extant; see Halsbury's, above n 24, vol 32.

116 On 7 February 1310, Edward II wrote to the earls of Lancaster, Hereford, Pembroke and Warwick ordering them not to attend Parliament with armed retainers (they claimed they needed them for protection). The sovereign's orders were ignored since the earls attended in full military array and laid a statement of their grievances before the king. In 1312, Edward's favourite, Piers de Gaveston, was killed with the approval of the earls of Lancaster, Hereford and Arundel. On 20 December 1312, in a treaty (prima tractatio ), the earls agreed they would stop bringing their armed retainers to Parliament once they received pardon for the killing of Gaveston. Edward II pardoned them in October 1313. See material on this period in the commentary on Edward II in the Parliament Rolls (1272–1504) (CD version and online), above n 16. See also McKisack, M The Fourteenth Century (Oxford: Clarendon Press, 1959) pp 9–10 Google Scholar and JRS Phillips Aymer de Valence, Earl of Pembroke 1307–1324: Baronial Politics in the Reign of Edward II (Oxford: Oxford University Press, 1972) pp 43–50.

117 Royal Proclamation of 1351 (emphasis added and wording divided for ease of reference) cited in Riley, T Memorials of London and London Life (London: Longmans, 1868) p 268 Google Scholar.

118 Oxford English Dictionary, above n 104 (obs): ‘A stuffed jacket or jerkin worn under the mail; a jacket of leather or the like plated with mail’. See also McKisack, above n 116, p 298.

119 The Statute of Northhampton 1328 (2 Edw 3 c 3, rep) provided: ‘Item, it is enacted, that no man great or small, of what condition soever he be, except the king's servants in his presence, and his ministers in executing of the king's precepts, or of their office, and such as be in their company assisting them, and also [upon a cry made for arms to keep the peace, and the same in such places where such acts happen,] be so hardy to come before the King's justices, or other of the King's ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison at the King's pleasure. And that the King's justices in their presence, sheriffs, and other ministers in their bailiwicks, lords of franchises, and their bailiffs in the same, and mayors and bailiffs of cities and boroughs, within the same cities and boroughs, and borough-holders, constables, and wardens of the peace within their wards, shall have power to execute this act. And that the justices assigned, at their coming down into the country, shall have power to enquire how such officers and lords have exercised their offices in this case, and to punish them whom they find that have not done that which pertained to their office.’

120 In Edward II's time, knights wore armour. They carried a lance and sword (the short dagger; the misericord, was not carried until the middle of the century). Some knights would have carried a mace or battle axe. Archers (foot and mounted) would not have worn armour. They would have carried a longbow (or crossbow), a short sword and a knife. Foot soldiers would not have worn armour. They would have carried pikes, swords, daggers and whatever other weapon they could equip themselves with. See also McKisack, above n 116, pp 238–240.

121 See House of Commons Information Office Factsheet G7 (General Series, revised January 2009) p 8 which notes, on the wearing of swords by members of parliament, that ‘it was at one time common for members to wear swords in the Chamber (there is a record of an incident in the eighteenth century when one member's sword impaled and removed another's wig); it is not now permitted to carry arms of any kind into debate. The Serjeant at Arms does, however, wear a sword whilst in the Chamber’. For a case in Edward II's reign of fighting in Parliament, on 22 February 1316 (a Sunday) in the cathedral church of Lincoln, Sir John Roos attacked Hugh Despenser the Younger (later, one of Edward II's favourites) in the middle of Parliament in the presence of Edward II. Denouncing Despenser in strong language, Roos rushed at him with drawn sword. Despenser punched Roos in the face in return. Despenser was fined £10,000 but later pardoned. It may be noted that Roos was not proceeded against under the Act of 1313. See Tout, Tf The Place of the Reign of Edward II in English History (Manchester: Manchester University Press, 1914) p 105 Google Scholar. See also Taswell-Langmead, above n 23, p 406.

122 Edward II held some of his Parliaments at York, Stamford and Lincoln.

123 Halsbury's, above n 24, vol 12(1).

124 For an extended discussion of this Act, see the article referred to in n 2.

125 It may be noted that this Act of 1313 was not used (or was ineffective) in cases where Parliament was intimidated by large bodies of armed men such as in 1338, 1397, 1447, 1453, 1454 and 1458. See JEA Jolliffe Constitutional History of Medieval England (London: A & C Black, 2nd rep, 1948) pp 429–430 and 443.

126 In 1969, Lord Upjohn said ‘anybody who has seen the first volume of the Statutes Revised will realise, there are still a good deal of old statutes sometimes rotting sometimes mysterious, which are still in the Statute Book’. See Fourth Report by the Joint Committee of the House of Lords and the House of Commons on the Statute Law (Repeals) Bill (16 July 1969) HL 60-IV, p 1. This is still true.

127 See above n 2.

128 Eg the Malicious Damage Act 1861, s 72 (offences committed within the jurisdiction of the admiralty) is spent since the only extant provisions of this Act relate to railways. The Metropolitan Police Courts Act 1839, s 55 and Metropolitan Police Act 1839, s 79 refer to the Metropolitan Police Act 1829, now repealed. The Penal Servitude Act 1857, s 2 abolishes transportation and substitutes penal servitude. However, the latter has, itself, been abolished. The Common Informers Act 1951, s 1 abolishes certain common informer actions. Repeal of this Act will not reactivate them.

129 Not only would it make this legislation easier to find and more readable, it would enable similar sections to be juxtaposed. Eg, both the Malicious Damage Act 1961 and the Offences Against the Person Act 1861 contain sections relating to railways. These sections should be consolidated into one section with subsections.

130 For those who always find reasons against consolidation, reference may be made to a useful article by Lord Simon of Glaisdale and JVD Webb ‘Consolidation and statute law revision’[1975] PL 285; also M Arden ‘Modernising legislation’[1998] PL 65. If all this material were consolidated, obviously, some sections would contain more antiquated language than others. However, that always occurs with consolidation and I am not persuaded that lawyers (and judges) would be phased by this. Doubtless, they would find it better than trying to scrabble through more than 70 separate Acts (it is also uncertain which apply to Northern Ireland or Scotland). Further, the House of Lords has made in clear that old legislation should be construed in the light of modern realities: R (Rusbridger) v AG, above n 3.