The Gazette 1974

BOOK REVIEWS Megarry (Hon. Sir Robert)—A Second Miscellany at Law—being a further diversion for Lawyers and Others. 23 cm.; xvii plus 420 pp.; index (double columns), pp. 369-420; London : Stevens, 1973; £4.80. Although the publishers have omitted so far to send a review copy, which it is hoped will be remedied shortly, this fascinating volume is so full of interest that one could not pass it by. The Hon. Mr. Justice Megarry became a recognised favourite with Irish law students when he was one of the principal speakers at a congress on legal education held in Trinity College in 1968. The learned Judge has placed a wealth of learning and erudition at our disposal, as he had previously done in the first volume of Miscellany at Law, published in 1955. It is extraordinary that when prominent English counsel refused to defend Casement, they chose to forget Erskine's aphorism in R. v Payne (1872) : "If the advo- cate refuses to defend, from what he may think of the charge or defence, he assumes the character of a judge even before the hour of judgment." In view of the rela- tively small number of practising barristers at the Irish Bar, it would hardly be possible to contemplate a case like London Financial Association v Kek (1884) 26 Ch.D. —in which no less than two future Lord Chancellors, one future Lord Chief Justice, four future Law Lords, and three future Lord Justices of Appeal took part as counsel. In the seventeenth century, William Hudson unflatteringly compared solicitors to grasshoppers of Egypt, "who devour our land". An anecdote of Tim Healy is preserved in The Old Munster Circuit, in which Healy, on being asked what kind of man the solicitor was, said to the Judge : "The kind of man, my Lord, that when the last trumpet sounds, would wake up and mutter : 'Second Calling'." In another case in 1939, a wealthy Austrian, who wished to put the Bank of England out of reach of the Germans, summoned his English solicitor to Vienna, asked him to take a careful note of the numbers of the bonds, then solemnly burnt them and asked the solicitor to arrange for the Bank to produce duplicate bonds in England. Intricate examples are given in relation to judgments, where the Judges have either died or retired, or where there was an equal division in the Court. Some of the older reports were inaccurate, and Pollock G.B. said that "You may find authority in the so-called 'Modern Reports' for many propositions which are not law." In regard to the doc- trine of precedent, the struggle between Lord Denning, M.R., who wished to change the law and the ultra conservative Law Lords is vividly illustrated. In Smith Hogg and Co. v Black Sea Insurance Co. (1940) A.C., Lord Wright deprecated the use of Latin phrases, which only distract the mind from the true problem of apply- ing principles of English law to the realities of the age. With regard to the difficulty of interpreting statutes, Lord Goddard, in Southward Borough Council v Nightingale (1948), 64 T.L.R., said : "I have spent some hours trying to understand the London County Council (General Powers) Act 1947 and, although I may have some glimmering about it, I am still far from satisfied that I understand it." Although Lord Denning tried wisely to point out that it was the duty of the Court to

find out the intention of Parliament, and to fill in the gaps if necessary, this was strangely rejected by the House of Lords in Magor R.D.C. v Newport Corpora- tion (1950) 2 All E.R., who pretended it was a "naked usurpation of the legislative function", while the duty of the Court was rigorously limited to interpreting the words the Legislature had used. Brandeis J. in Olms- tead v U.S. (1928) has rightly said that "the greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding". These few examples will have shown the mastery which the learned author displayed in writing this erudite volume, full of light touches. There are occasi- onal Irish legal stories though none to emulate the sharpness of Rhadamanthus in describing "Our Judges" in 1890. Mr. Justice Megarry would appreciate if any members sent him some suitable legal stories to add to his vast collection. This volume is memorable, because the learned author bears his vast erudition so lightly. Elliott (D. W.) and Wood (J. C.)—A Casebook of Cri- minal Law. Third edition; 25 cm.; xxiv plus 558 pp.; index (double columns), pp. 555-558; London : Sweet & Maxwell, 1974; £4.75. The fact that three editions of this casebook have been published in little more than ten years speaks for itself. Professor Elliott teaches law in Newcastle-on-Tyne, while Professor Wood is on the staff of Sheffield Univer- sity. Broadly speaking, the more important English legislation and cases on criminal law have been brought up to date since 1969. The Irish case of A.G. v Whelan (1934) I.R., where the accused had been forced by threat of death to take stolen property, and was conse- quently acquitted by the Court of Criminal Appeal, is fully given, followed in England by R. v Bone (1968) I W.L.R. There follows Sweet v Parsley (1970) A.C., in which the House of Lords allowed a conviction for being concerned in the management of premises used for the purpose of smoking cannabis. In R. v Lowe (1973) I Q.B., the accused was charged with, being a person in charge of a child, wilfully neglecting him in a manner likely to cause him unnecessary suffering; his appeal was dismissed. In R. v Souter (1971) I W.L.R., the appeal was allowed when the applicant had been con- victed of permitting premises to be used for the purpose of smoking cannabis contrary to the Dangerous Drugs Act 1965, as he did not know this was taking place. In R. v Madan (1961) 2 Q.B., proceedings brought against an Indian diplomat for allegedly obtaining a railway ticket by false pretences were dismissed as null and void. In R. v Smith (1973) 2 WLR, two accused who were charged with attempting to handle stolen goods, were acquitted on appeal. In this case, the police had stopped a van, which contained stolen goods, on the motorway; they allowed it to proceed and followed it. At a service area, the accused were found waiting to take over the goods. In Director of Public Prosecutions v Bhagwan (1972) A.C., an Indian, who had landed illegally in Britain successfully contended that a charge of con- spiracy to evade the control of immigration was one 255