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Claim of Right and Dispute of Title
Published online by Cambridge University Press: 16 January 2009
Extract
The common law recognises two defences to a criminal charge that an accused can plead, based upon a belief that the law permitted him to act as he did. First there is the well-known substantive defence of bona fide claim of right, which operates to negative mens rea, and thus absolves from criminal liability, and secondly the procedural defence, open to an accused summarily charged, that adjudication involves a decision as to his property or title and therefore the jurisdiction of the justices to determine in a summary manner is ousted. For the latter defence, the helpful phrase “dispute of title” has recently been coined. The basic problem is to distinguish this from the deceptively similar defence of claim of right. Writers are prone to dismiss the defence of dispute of title in rather cursory fashion before concentrating on claim of right, and to utter solemn warnings against confusing the two, but it is not unknown for a writer to disregard his own admonitions, and fall into the very pit he has observed yawning before his eyes. Judges, with one notable exception, have surmounted this original crevasse, but in matters of detail have shown that misunderstanding of the law is not confined to the accused. The object of this article is to reverse the usual practice, to dismiss the substantive defence of claim of right in a few lines, and thereafter to refer to it only so far as this is necessary to implement a detailed discussion of the procedural defence of dispute of title, either by way of comparison or as a means of showing the details of the procedural defence in sharper relief.
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- Copyright © Cambridge Law Journal and Contributors 1966
References
1 Williams, Glanville, Criminal Law, The General Part, 2nd ed. (1961), p. 306Google Scholar; adopted in Smith and Hogan, Criminal Law (1965), p. 491.
2 2 East P.C. 659. The legal burden of proving the absence of a claim of right is on the prosecution, but the evidential burden of introducing evidence on the subject is on the accused: Williams, Glanville, op. cit., p. 332.Google Scholar
3 Williams, G. L., op. cit., p. 305Google Scholar; Farey v. Welch [1929] 1 K.B. 388.Google Scholar
4 R. v. Hemmings (1864) 4 F. & F. 50; R. v. Boden (1844) C. & K. 395; R. v. Bernhard [1938] 2 K.B. 264Google Scholar; 6 & 7 Geo, 5, c. 50.
5 39 Geo. 3, c. 85 (rep.); R. v. Norman (1842) C. & M. 501.
6 24 & 25 Vict. c. 97; R. v. Day (1844) 8 J.P. 186; R. v. Twose (1879) 14 Cox 327; R. v. Rutter (1908) 25 T.L.R. 12.Google Scholar
7 R. v. Clemens [1898] 1 Q.B. 556.
8 R. v. Williams (1836) 7 C. & P. 354.
9 Williams, G. L., op. cit., p. 333Google Scholar, n. 2; Hudson v. MacRae (1863) 4 B. & S. 585 at p. 592, per Blackburn J., who held that claim of right is not a defence to a charge under s. 24 of the Larceny Act, 1861, of unlawfully and wilfully taking fish, contrasting Taylor v. Newman (1863) 4 B. & S. 89, where it was held that a charge under s. 23 of unlawfully and wilfully killing a house pigeon, under such circumstances as shall amount to larceny at common law, imported the ingredient of larceny that claim of right is a good defence.
10 S. 29 of the Larceny Act, 1916 (6 & 7 Geo, 5, c. 50), deals with the felony of uttering a letter demanding with menaces and without any reasonable or probable cause. These words have been interpreted to mean that any claim of right must be reasonable: R. v. Dymond [1920] 2 K.B. 260Google Scholar, whereas in general the test of substantive claim of right is subjective.
S. 217 (2) of the Road Traffic Act, 1960 (8 & 9 Eliz. c. 16), provides the defence of reasonable belief that he had lawful authority for one charged with taking and driving away a motor-vehicle without the consent of the owner or other lawful authority. At common law, honest belief would be a defence whether reasonable or not, see Williams, G. L., op. cit., p. 327Google Scholar, n. 22, citing R. v. Murphy [1957] V.R. 545Google Scholar, but the statute modifies the common law defence.
11 [1952] 1 All E.R. 411 at p. 413.
12 Bernhard, note 4, supra.
13 (1877) 2 C.P.D. 351.
14 (1919) 88 L.J.K.B. 1141.
15 (1914) 111 L.T. 378. The charge was under s. 2 of the Poaching Prevention Act, 1862 (25 & 26 Vict. c. 114).
16 (1880, 43 & 44 Vict, c. 47), s. 1. See notes 1–4, infra, p. 105.
17 s. 18 (5) of the Magistrates’ Courts Act, 1952 (15 & 16 Geo. 6 & 1 Eliz. 2, c. 55).
page 92 ote 18 24 & 25 Vict, c. 100. See also s. 14 (3) of the Criminal Justice Administration Act, 1914. Another example is in the Road Traffic Act, 1960 (8 & 9 Eliz. 2, c. 16), ss. 2 and 6.
19 One such decision is Duplex Settled Investment Trust v. Worthing Borough Council [1952] 1 All E.R. 545 at p. 547Google Scholar, approved obiter by Ashworth, J. in R. v. Ogden [1963] 1 All E.R. 574 at p. 577.Google Scholar In Burton v. Hudson [1909] 2 K.B. 564 at p. 570Google Scholar, Alverstone L.C.J. referred to the point, but held there was another remedy. In Andrews v. Carlton (1928) 93 J.P. 65Google Scholar, the point was argued, but the court did not even refer to the argument, and held the justices had jurisdiction: see note 49, infra, p. 96.
20 Clarkson v. Aspinall [1950] St.R.Qd. 79 at p. 90Google Scholar, with the comment that this position arises in practically every case of ouster. This judgment is a valuable synthesis of the subject of dispute of title.
21 22 & 23 Car. 2, c. 35.
22 Per Blackburn J. in White v. Feast (1872) L.R. 7 Q.B. 353 at p. 358.
23 Paley, Summary Convictions, 1st ed. (1814), p. 33.
24 See note 10, supra.
25 See notes 34, 39, 40, infra, pp. 94, 95.
26 Johnston v. Meldon (1891) 30 L.R.Ir. 15 at p. 27.
27 Note 30, infra.
28 Note 19, supra.
29 (59 Geo. 3, c. 12), s. 24; R. v. Justices of Llanfilo (1867) 31 J.P. 7; R. v. Bolton (1841) 1 Q.B. 66; Ex p. Vaughan (1866) L.R. 2 Q.B. 114.
30 (5 & 6 Will, 4, c. 50), s. 73; Williams v. Adams (1862) 2 B. & S. 312 at p. 316.
31 Op. cit., p. 11.
32 Note 21, supra.
33 It will be described here as a common law rule, despite the slight inaccuracy involved: see note 22, supra.
34 1 & 2 Will. 4, c. 32.
35 (1857) 7 E. & B. 853.
36 (1878) 26 W.R. 681.
37 Russell on Crime, 12th ed. (1964), Appendix 2, p. 1575Google Scholar, n. 6.
38 See continuation of this article in November issue.
39 9 Geo. 4, c. 31.
40 7 & 8 Geo. 4, c. 30.
41 (1876) 40 J.P. 245 at p. 247. In fact, the accused had an equitable profit (notes 71–76, infra). Regarding it as a bare licence, Blackburn J. treated it as in its nature revocable, as at that period Wood v. Leadbitter (1845) 13 M. & W. 838 was the last word on the subject. For later developments, see notes 51–60, infra.
42 24 & 25 Vict. c. 100.
43 Note 39, supra.
44 (1880) 49 L.J.M.C. 60 at p. 63. Smith and Hogan, op. cit., p. 491 (e), say that there must be a claim to title to real property.
45 (1859) 23 J.P. 724.
46 Note 40, supra.
47 (1874) L.R. 7 H.L. 158—the earlier case was Flureau v. Thornhill (1776) 2 W.Bl. 1078.
48 [1950] 1 All E.R. 894.
49 (1928) 93 J.P. 65.
50 Per Avory J. arguendo ibid., and per Hewart L.C.J. at p. 66.
51 [1904] 1 K.B. 713.
52 Per Hewart L.C.J. (1928) 93 J.P. 65 at p. 66.
53 Note 45, supra.
54 Note 82, infra.
55 See continuation of this article in November issue.
56 [1936] 3 All E.R. 483.
57 [1916] 2 A.C. 54, unless the right is confined to advertising a business carried on near by, when it might be a valid easement: Moody v. Steggles (1879) 12 Ch.D. 261.
58 [1952] 1 K.B. 290.
59 Approved in (1953) 16 M.L.R. 1 by Cheshire, criticised by H. W. R. Wade in (1952) 68 L.Q.R. 337, and by Hargreaves in (1953) 69 L.Q.R. 466.
60 In National Provincial Bank v. Ainsworth [1965] 2 All E.R. 472Google Scholar, the House of Lords gave no indication of the probable answer: see Lord Upjohn at p. 489, and Lord Wilberforce at p. 496.
61 Cheshire “quickly dismisses” King v. David Allen, because “at the time of the action the subject-matter of the licence, a picture theatre, was not even in existence…”: (1953) 16 M.L.R. 1, 12. This is contrary to the statement of facts in the lower court report: (1915) 2 Ir.R. 213 at p. 215, according to which, A. sent men to post bills on the flank wall, but they were not allowed to do so. Later bills were posted two or three times, but the company washed them off. Then A. sued K. The report of the H.L. proceedings is equally clear that the company, having built the cinema, refused to permit A. to post bills, and when he found he was prevented from doing so, he sued K.: [1916] 2 A.C. 54 at p. 56. Lord Buckmaster's judgment is to the same effect, at p. 61.
62 (1952) 30 Can. Bar Rev. 1004, 1008.
63 G. L. Williams, ibid., mentions another solution that he prefers.
64 Smith v. Cooke (1914) 84 L.J.K.B. 959.
65 R. v. Burrow (1869) 34 J.P. 53.
66 Note 44, supra.
67 Clarkson v. Aspinall [1950] St.R.Qd. 79Google Scholar, where the point was not argued, and was left open in the judgments, but reference is made to two sub silentio authorities: Kelly v. Fitzgerald (1901) 11 Q.L.J. 9Google Scholar and Doyle v. Anyon [1910] St.R.Qd. 180.Google Scholar
68 In November 1963 the Lord Chancellor invited the Law Reform Committee to consider whether, in its application to the transfer of chattels, the rule that no one can give a better title to property than he himself possesses should be modified.
69 Note 41, supra.
70 Webber v. Lee (1882) 9 Q.B.D. 315.
71 (1876) 40 J.P. 245; note 41, supra.
72 Note 34, supra.
73 Emphasis supplied.
74 Notes 35, 36, supra.
75 (36 & 37 Vict. c. 66), s. 2.
76 Mason v. Clarke [1955] A.C. 778 at p. 799Google Scholar, per Lord Morton, relying on the fact that M. set snares, took rabbits and paid helpers, and these acts were exclusively referable to the oral agreement. Moreover he had entered into possession in the only way possible. See also Viscount Simonds at p. 794. Sed qu. whether he had changed his position, so as to raise an equity in his favour, and render it unconscionable in the other party to plead the absence of writing. Perhaps the importance of this element in part performance is diminishing—see Williams, James, The Statute of Frauds (1932), p. 248Google Scholar, referring to Brough v. Nettleton [1921] 2 Ch. 25.Google Scholar In this respect, Brigstocke's position is even weaker than Mason's: if he has merely shot over the land, his expenditure on cartridges and on beaters has been recompensed by the sport and the creatures shot.
77 (1882) 21 Ch.D. 9, especially per Jessel M.R. at pp. 14, 15.
78 (1877) 36 L.T.(n.s.) 559.
79 (1871) 40 L.J.M.C. 131 at p. 133.
80 (1859) 1 E. & E. 502.
81 Durham and Sunderland Ry. v. Walker (1842) 2 Q.B. 940 at p. 967; Mason v. Clarke [1955] A.C. 778 at p. 786Google Scholar, per Viscount Simonds in the H.L., and in the C.A. per Denning L.J.: [1954] 1 All E.R. 189 at p. 191.
82 Buckland, A Text Book of Roman Law (1963), 3rd ed., p. 260.
83 See continuation of this article in November issue.
84 R. v. Critchlow, note 36, supra.
85 (1893) 57 J.P. 692.
86 (43 & 44 Vict. c. 47), s. 8.
87 Note 78, supra.
88 Notes 70–76, supra.
89 Per Lush J. in Coleman v. Bathurst, note 79, supra. The textbooks confirm that this is the law, but actual authority is scanty. Woodfall, Landlord and Tenant, 26th ed. (1960), p. 812, cites Moore v. Plymouth (1817) 7 Taunt, 614, but the case supports no such proposition. Halsbury, Laws of England, 3rd ed. (1960), Vol. 18, p. 131, cites Pochin v. Smith (1887) 52 J.P. 4 and see infra, p. 105, and Anderson v. Vicary, but both are cases on the Ground Game Act, 1880. Hill and Redman, Law of Landlord and Tenant, 14th ed. (1964), p. 288, cite Copland v. Maxwell (1871) L.R. 2 Sc. & Div. 103, but this is only a dictum of Lord Colonsay, a Scottish lord, in a H.L. appeal from Scotland, where the law is different.
90 1 & 2 Will 4, c. 32.
91 Mason v. Clarke [1955] A.C. 778 at p. 794Google Scholar, per Viscount Simonds. It is clear that the holder of a profit may sue trespass against one who interferes with his right: Holford v. Bailey (1850) 13 Q.B. 426; Paine v. St. Neots Gas Co. [1939] 3 All E.R. 812 at p. 823.Google Scholar
92 (1859) 1 El. & El. 875, followed in Padwick v. King (1859) 7 C.B.(n.s.) 88.
93 (1864) 10 L.T.(n.s.) 339, per Cockburn L.C.J.
94 (1865) 34 L.J.M.C. 140.
95 (1860) 24 J.P. 390.
96 Note 79, supra.
97 (1874) 30 L.T.(n.s.) 792 at p. 795, per Grove. J.
98 (1877) 36 L.T.(n.s.) 559. See note 78, supra.
99 (1885) 2 T.L.R. 161.
1 Note 86, supra.
2 Ibid.
3 (1887) 52 J.P. 4.
4 (1894) 10 T.L.R. 362.
5 R. v. Hall (1828) 3 C. & P. 409.
6 R. v. Wade (1869) 11 Cox 549—a lien.
7 R. v. Bernhard, note 4, supra, p. 91.
8 R. v. Williams, note 8, supra, p. 91.
9 R. v. Day, note 6, supra, p. 91. Perhaps this applies only to charges of malicious damage, and a claim of right in larceny must be to own or possess; Smith and Hogan, op. cit., p. 489, note 20.