Legal anachronisms – another reason to love the law

Since the English legal system has been going in its present form (sort of) since time immemorial (which is 825 years, 1189 having been set as ‘time immemorial’ by the first Statute of Westminster in 1265), that’s plenty of time for weirdness to accumulate.

Some of the weirdness starts out weird from the beginning; the rest achieves weirdness over time, as laws that were appropriate when they came into being become either inappropriate or utterly bizarre as society changes. Sometimes studying law is like being a paleontologist: you see legal principles fossilised, and it gives you a short glimpse into the lives of people in the past.

The Law Commission has the job of sweeping up as many anachronisms as they can and getting rid of them, making sure we have a legal system that doesn’t go ping at inconvenient moments. But there are plenty that are not caught by their tidy-minded efforts.

One occasion when it did go ping (pre-Law Commission) was the case of Ashford v Thornton [1818] 106 E.R. 140. That is the last recorded instance in which a defendant successfully argued that he had the right to trial by combat. It was a private retrial for murder, brought by the dead woman’s brother, and the brother refused the combat. Thornton (the defendant) was therefore free to go. One does tend to think that the right to trial by combat was one of those things that had been forgotten about – because after Ashford, the parliament of the day acted pretty swiftly to end the ability to bring a private prosecution for murder after an acquittal, and the concomitant right to trial by battle, by statute – the Creating Appeal of Murder, etc. Act 1819 (59 Geo. III, c. 46). Clearly Mr Leon Humphreys did not know this when he challenged the DVLA to provide a ‘champion’ to fight him in single combat in 2002. Where he got the idea that trial by combat would be legal under European Human Rights law, I have no idea – considering the European Convention on Human Rights guarantees both the right to life and the right to a fair trial…

I find this an interesting contrast to the case of marital rape. With marital rape in the news, with various countries making rape impossible within marriage, here in England we should probably temper our remarks with the knowledge that it only became possible to convict a husband of the rape of his wife in England in 1991 (although previous to that various judges, acknowledging how morally wrong this legal principle was, went to great lengths to avoid it). We therefore don’t have much room for superiority. In England, the principle derived from the 1763 edition of Matthew Hale’s History of the Pleas of the Crown (volume 1) in which it was stated that a wife, once she had given her consent to sex on marriage, could not withdraw that consent.

Oddly, Parliament – so swift to act on the subject of trial by combat – made no move whatsoever to remove this legal principle, and thus protect married women from sexual violence. It took the House of Lords, in 1991, to do that, Lord Keith of Kinkel quoting Lord Lane CJ: “This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it”. (R v R [1991] UKHL 12)

Another interesting legal point was that – until the beginning of this year – it was defamation or libel and actionable per se (no need for the woman to prove damage to her reputation) to call a woman a lesbian. Even if she was one, and was perfectly happy for people to know her sexual orientation. The Slander of Women Act 1891 made imputing unchastity to a woman defamatory per se – and the case of Kerr v Kennedy [1942] 1 K.B. 409 confirmed that this applied to unchastity with another woman as well as with a man. The new Defamation Act 2013, which came into force on the 1st January 2014 repealed the Slander of Women Act, and thus ended this little legal anachronism.

The Presumption of Advancement, however, is still alive and kicking, and goes as follows:

Where one person, A, transfers the legal title of a property that he owns or purchases to another, B, without receipt of any consideration, the effect will depend on his intention. If he intends to transfer the beneficial interest in the property to B, the transaction will take effect as a gift and A will lose all interest in the property. If he intends to retain the beneficial interest for himself, A will take the legal interest but will hold the property in trust for A.

Normally there will be evidence of the intention with which a transfer is made. Where there is not, the law applies presumptions. Where there is no close relationship between A and B, there will be a presumption that A does not intend to part with the beneficial interest in the property and B will take the legal title under a resultant trust for A. Where, however, there is a close relationship between A and B, such as father and child, a presumption of advancement will apply. The implication will be that A intended to give the beneficial interest in the property to B and the transaction will take effect accordingly.

The presumption of advancement applies between father to legitimate child (but not illegitimate children! – and not between mother and child unless the mother is in loco parentis), husband to wife (but not wife to husband), fiancé to fiancée but not the other way around and not between couples who are not either married or engaged…. Apparently the Equality Act 2010 will remove these asymmetric provisions – but that part of the Act (Part 15) hasn’t been brought into force yet. Another interesting bit of law that the Equality Act 2010 will remove (once those parts are brought into force) is the husband’s duty to maintain his wife. Yes, husbands: there is a common-law duty that husbands must maintain their wives (but not the other way around). I must mention this to my husband…

The presumption of advancement is alive and well (see Lavelle v Lavelle [2004] EWCA Civ 223 and Equity and Trusts law school exams), but the husband’s common-law duty to maintain his wife (though it still exists) has been superseded by statutory provisions that work in both directions.

Until 5 days ago (13th May 2014), the marital coercion defence was also alive and kicking, and used by Vicky Pryce in her trial for taking penalty points for speeding for her husband (Chris Huhne). It was a defence to all criminal offences except treason and murder for a wife to show she committed the offence in the presence of, and under the coercion of, her husband. The Pryce trial prompted the government to act to remove this defence, which they did in the Anti-social Behaviour, Crime and Policing Act 2014 c. 12 (section 177).

Under the definition of ‘weird from the beginning’, however, comes the Nuclear Explosions (Prohibition and Inspections) Act 1998 c.7. Under this act (which is not yet in force) “Any person who knowingly causes a nuclear weapon test explosion or any other nuclear explosion is guilty of an offence and liable on conviction on indictment to imprisonment for life”. Since the Act isn’t in force yet, one might conclude that one should hasten to conduct that nuclear test explosion one has been meaning to do one of these days, before anyone gets around to bringing the law into force. On the other hand, since there are already perfectly good laws to deal with people who set off nuclear explosions, one does wonder what Parliament was thinking. Apart from anything else, are the people likely to ‘knowingly cause’ a nuclear explosion the sort of people to take any notice of a law?

How can anyone not enjoy studying a subject so replete with the bizarre? Every law provides an insight into the concerns and beliefs of society at the time it was passed, and the proliferation of statutes provides a legal forest in which there are more lost and forgotten things than the Amazon, waiting to be discovered by anyone who has the courage to venture into the wilderness.


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