Editorial Committee of the Cambridge Law Journal

Criminal Evidence by John A. Andrews; Michael HirstReview by: Roderick MundayThe Cambridge Law Journal, Vol. 47, No. 1 (Mar., 1988), pp. 130-132Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4507132 .

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130 130 The Cambridge Law Journal The Cambridge Law Journal [1988] [1988]

dispelling some of the myths about the attitude of the newly independent states towards international law. Finally, there are essays about global satellite telecommunications (by Professor Matte) and the diversion of waters and the pnnciple of equitable utilisation (by Professor Manner).

The section on commercial law contains four essays Lord Justice Kerr examines commercial dispute resolution, while Lord Justice Mustill writes about "The New Lex Mercatoria" in an essay which deserves a warmer welcome from its readers than its author suggests it will receive. Professor Treitel contnbutes a stimulating article on the concept of fault in the English law of contract. Of particular interest to international lawyers in this section is I:)r. Mann's article on "State Corporations in International Relations." Although brief, this essay is characteristically rigorous and wide-ranging in its examination of the legal problems confronting the courts of one country in dealing with corporations owned and established by another state. If Dr. Mann's analysis of these problems, and of the response of the courts *n various countries to them, is inevitably controversial, it is a contnbution to debate of the utmost importance, svhich nobody concerned (whether as practitioner or academic) with the status of State corporations, and the extent to which they should be identified with the States which created them, can afford to ignore.

The volume is completed by an essay by the Chairman of the Value Added Tax Appeals Tribunal on ;'The Impact of Community Law on Indirect Taxation" and Professor Williamsss essay on administrative law to which reference has aIready been made.

The essays in this volume are a mixed bags both in terms of subject and quality, but all international lawyers and commercial lawyers, as well as many others, should find something of interest to them in this unusual solume, the publication of which is the more welcome since collections of this kind in honour of an eminent lawyer are rare in this country.

CHRISTOPHER GREENWOOD.

Crirninal Evzdence. BY JOHN A. ANDREWS and MICHABL H1RST. [London: Waterlow Publishers. 1987. lxix, 566, (Appendices) 34 and (Index) 12 pp. Hardback £45 00 net.]

IN the last few years the literature of the law of evidence has undergone an extraordinary transformation. Not only has the number of books on the subject expanded dramatically, with writers exploring different ways of facilitating comprehension of this complex but arresting area of law, but more interestingiy some of the most recent offerings have recognised that the unity of the law of evidence, still maintained in the majority of texts, is Iargely illusory and have sensibly concentrated upon criminal evidence rather than endeavollr to span the ever-wiclening gap between the law of evidence in civil and criminal cases. Richard May's fine little book blazed the trail (see l1987] 46 C.L.J. 358) and Andrews and Hirst, in Waterlow's Criminal Law Series, takes the same path. The quality of volumes in this latter series has proved somewhat variable. However, this latest addition to ehe collection is of very high quality and can be strongly recommended as an accurate, well-written and detailed expositioll of English criminal evidence. Although primarily destined for the use of practitioners, this book is neither too

dispelling some of the myths about the attitude of the newly independent states towards international law. Finally, there are essays about global satellite telecommunications (by Professor Matte) and the diversion of waters and the pnnciple of equitable utilisation (by Professor Manner).

The section on commercial law contains four essays Lord Justice Kerr examines commercial dispute resolution, while Lord Justice Mustill writes about "The New Lex Mercatoria" in an essay which deserves a warmer welcome from its readers than its author suggests it will receive. Professor Treitel contnbutes a stimulating article on the concept of fault in the English law of contract. Of particular interest to international lawyers in this section is I:)r. Mann's article on "State Corporations in International Relations." Although brief, this essay is characteristically rigorous and wide-ranging in its examination of the legal problems confronting the courts of one country in dealing with corporations owned and established by another state. If Dr. Mann's analysis of these problems, and of the response of the courts *n various countries to them, is inevitably controversial, it is a contnbution to debate of the utmost importance, svhich nobody concerned (whether as practitioner or academic) with the status of State corporations, and the extent to which they should be identified with the States which created them, can afford to ignore.

The volume is completed by an essay by the Chairman of the Value Added Tax Appeals Tribunal on ;'The Impact of Community Law on Indirect Taxation" and Professor Williamsss essay on administrative law to which reference has aIready been made.

The essays in this volume are a mixed bags both in terms of subject and quality, but all international lawyers and commercial lawyers, as well as many others, should find something of interest to them in this unusual solume, the publication of which is the more welcome since collections of this kind in honour of an eminent lawyer are rare in this country.

CHRISTOPHER GREENWOOD.

Crirninal Evzdence. BY JOHN A. ANDREWS and MICHABL H1RST. [London: Waterlow Publishers. 1987. lxix, 566, (Appendices) 34 and (Index) 12 pp. Hardback £45 00 net.]

IN the last few years the literature of the law of evidence has undergone an extraordinary transformation. Not only has the number of books on the subject expanded dramatically, with writers exploring different ways of facilitating comprehension of this complex but arresting area of law, but more interestingiy some of the most recent offerings have recognised that the unity of the law of evidence, still maintained in the majority of texts, is Iargely illusory and have sensibly concentrated upon criminal evidence rather than endeavollr to span the ever-wiclening gap between the law of evidence in civil and criminal cases. Richard May's fine little book blazed the trail (see l1987] 46 C.L.J. 358) and Andrews and Hirst, in Waterlow's Criminal Law Series, takes the same path. The quality of volumes in this latter series has proved somewhat variable. However, this latest addition to ehe collection is of very high quality and can be strongly recommended as an accurate, well-written and detailed expositioll of English criminal evidence. Although primarily destined for the use of practitioners, this book is neither too

This content downloaded from 62.122.78.49 on Sat, 14 Jun 2014 16:19:30 PMAll use subject to JSTOR Terms and Conditions

Book Reviews 131 C.L.J.

practical nor too austere for law students, who might do far worse than consult it for a clear and intelligent account of the subject.

In the law of evidence clanty is possibly the hardest goal to achieve. As Lord Gnffiths remarks in his Foreword to Andrews and Hirst, the authors have succeeded in citing something in the region of 1300 cases. Rather than being a matter for congratulation, this is stnking testimony to the vigorous case law development within the subject-a feature that can of course lead some into the heresy of gross oversitation. Andrews and Hirst absorbs this welter of case law elegantly and at no point does one have the impression of a subject totally borne down under a weight of vain leaming. But if the authors have succeeded in taming the case law, this reviewer was not wholly convinced by their accommodation of academic materials. For in some areas where one might have expected some reference to the law of evidence's leading literature nothing is cited, whereas in other portions of the book- for instance, the chapters on identification evidence and the burden of proof-one suddenly happens upon surprising pockets of academic citations. Moreover, in the latter case, having complained that the standard writings have contributed materially to the terrninological confusion in the topic, the authors proceed not merely to cite them all (para. 3.02) but even to add a fresh complexity of their own devising in the shape of the "forensic burden" (para. 3.04), a designation that seemed, with respect, to add little to what most would commonly understand by the term "tactical burden."

Too much should not be made of the authors' generally eschewing academic wntings, however, as the book, with its forbidding price, is primarily intended for the practitioner market. Judged as a practitioners' work, it offers a complete, authontative and sometimes critical account of the rules of criminal evidence. As the authors say in the Preface, whilst setting out to produce a comprehensive, coherent and readable text, they have also sought to give the ru}es meaning by setting them within a conceptual framework. lsherefore, the reader is offered the wherewithal to situate the evidential fragments of the subject within a more general scheme of things. Some sections are extremely well executed. The chapter on similar fact evidence (Chapter 15), for instance, without being cavalier with the matenals, offers a particularly well-ordered account. Simi}arly, its successor on the Criminal Evidence Act 1898 successfully covers another notoriously finical area of the law. An attractive feature of the book is that, although destined for the practitioner critical comment frequently figures in the text. Thus, in the last-mentioned chapter there is good comment on the Budson ruling, that was subsequently sanctified by the House of Lords in Selvey [1970] A.C. 304 (para 16.52), on the deceptively helpful noises made by Lord Hewart C.J. in Jones (1923) 17 Cr.App.R. 117 (para. 16.57) and on the Court of Appeal's latest flirtation with illiberal application of section 1(1) of the Cnminal Evidence Act in Powell l1986] 1 All ER. 193 (para. 16.79). Section 80 of the Police and Cnminal Evidence Act 1984 elsewhere receives well-deserved cnticism (paras. 8.28 to 8.33) and, unlike the noncommittal Cross on Evidence, the authors actually venture an opinion on the likely meaning of section 78 of that statute (para. 14.18). This facet of the book is particularly welcome.

Despite its size Andrews nnd Hirst contains few errors. Apart from very occasional mispnnts, some unconventlonal spellings (e.g., paras. 9.06 and 10.08) and ungrammatical Latin (para. 9.27), this reviewer's disagreement with the authors rarely strayed beyond questions of emphasis or rather

This content downloaded from 62.122.78.49 on Sat, 14 Jun 2014 16:19:30 PMAll use subject to JSTOR Terms and Conditions

132 132 The Cambridge Law Journal The Cambridge Law Journal [1988] [1988]

trifling points of detail. 'rhusR the ultimate forebeal of section 27(3) of the Theft Act should perhaps have been given as section 11 of the Habitual Criminals Act 1869 rather than section 19 of the Prevention of Crimes Act 1871 which most commentators and judges are prone to cite (cp. Elsom [1975] 12 S.A.S.R. 417; para. 15.70). Reference could now usefully be made in Chapter 3 to a case like Swaysland, The Times, 15 Apnl 1987, where the Court of Appeal appears to have specified how trial judges should address the subject of the legal burden of proof when it is borne by a defendant. Alternatively? in Chapter 9 this writer would suggest that one ought to be somewhat wary of the evidential value of human hair (para. 9.50) and, more specally, that Smith (1985) 81 Cr.App.R. 286 deserves a more sceptical analysis than it has received (para. 9.63}not least because it conflicts with the earlier case of Cray (1904) 68 J.P. 327 and with conventional forensic wisdom (see (1986) 136 N.L.J. 735). This reviewer's reading of the situation in Mitchell (1892) 17 Cox C.C. 503 is obviously at variance with that of the authors (paras. 9.54 and 19.95) and he would have been inclined to take a tougher line on Blastland [1986] A.C 42 (para. 17.24) and to prefer Cross's treatment of Wallwork (1958) 42 Cr.App.R. 153 (para. 7.26). However, it is emphasised that these are merely minor quibbles which should not be allowed to detract from the overall high worth of this volume. Its authors are to be warmly congratulated on having produced a systematic, intelligible and perceptive account of the iaw of criminal evidence, and this reviewer looks forward to future editions of this valuable book.

RODERICK MUNDAY.

Family Law in Scotland. BY J. M. THOMSON, LL.B., Professor of Law, University of Strathclyde. [London: Butterworths. 1987. xxiv, 221, and (lndex) 10 pp. Paperback £15 95 net.]

PAROCHIALISM is a characteristic of too many English family lawyers; and if we look at all at other legal systems we tend to turn to those of North America or the Antipodes, assuming perhaps that the other United Kingdom jurisdictions are lagging far behind England and thus will have nothing to teach us. This may be true of Northern Ireland, but as even a glance at Professor Thomson's valuable new book will immediately make clear, it is certainly not true of Scotland. In many ways Scotland has blazed the trail. For a start, judicial divorce was introduced in that country about three centuries before it eventually replaced divorce by private Act of Parliament here. Far more recently the Scots have shown us how to tackle the problem of the reform of illegitimacy as was frankly recognised by the English Law Commission in their Second Report on the subject in 1986 when they completely rewrote the proposals in their original Report to follow the pattern subsequently advocated by the Scottish Law Commission (and speedily implemented by Parliament); and English law has now belatedly caught up with Scots law in this area. In another, England still lags badly behind: the formal requirements for marriage in Scotland were put on a rationat basis ten years ago, whereas England's chaotic system continues (despite a Law Commission Report on the subject in 1973); and a place of safety order is already limited in Scotland to a maximum duration of seven dayst the period proposed for England in the

trifling points of detail. 'rhusR the ultimate forebeal of section 27(3) of the Theft Act should perhaps have been given as section 11 of the Habitual Criminals Act 1869 rather than section 19 of the Prevention of Crimes Act 1871 which most commentators and judges are prone to cite (cp. Elsom [1975] 12 S.A.S.R. 417; para. 15.70). Reference could now usefully be made in Chapter 3 to a case like Swaysland, The Times, 15 Apnl 1987, where the Court of Appeal appears to have specified how trial judges should address the subject of the legal burden of proof when it is borne by a defendant. Alternatively? in Chapter 9 this writer would suggest that one ought to be somewhat wary of the evidential value of human hair (para. 9.50) and, more specally, that Smith (1985) 81 Cr.App.R. 286 deserves a more sceptical analysis than it has received (para. 9.63}not least because it conflicts with the earlier case of Cray (1904) 68 J.P. 327 and with conventional forensic wisdom (see (1986) 136 N.L.J. 735). This reviewer's reading of the situation in Mitchell (1892) 17 Cox C.C. 503 is obviously at variance with that of the authors (paras. 9.54 and 19.95) and he would have been inclined to take a tougher line on Blastland [1986] A.C 42 (para. 17.24) and to prefer Cross's treatment of Wallwork (1958) 42 Cr.App.R. 153 (para. 7.26). However, it is emphasised that these are merely minor quibbles which should not be allowed to detract from the overall high worth of this volume. Its authors are to be warmly congratulated on having produced a systematic, intelligible and perceptive account of the iaw of criminal evidence, and this reviewer looks forward to future editions of this valuable book.

RODERICK MUNDAY.

Family Law in Scotland. BY J. M. THOMSON, LL.B., Professor of Law, University of Strathclyde. [London: Butterworths. 1987. xxiv, 221, and (lndex) 10 pp. Paperback £15 95 net.]

PAROCHIALISM is a characteristic of too many English family lawyers; and if we look at all at other legal systems we tend to turn to those of North America or the Antipodes, assuming perhaps that the other United Kingdom jurisdictions are lagging far behind England and thus will have nothing to teach us. This may be true of Northern Ireland, but as even a glance at Professor Thomson's valuable new book will immediately make clear, it is certainly not true of Scotland. In many ways Scotland has blazed the trail. For a start, judicial divorce was introduced in that country about three centuries before it eventually replaced divorce by private Act of Parliament here. Far more recently the Scots have shown us how to tackle the problem of the reform of illegitimacy as was frankly recognised by the English Law Commission in their Second Report on the subject in 1986 when they completely rewrote the proposals in their original Report to follow the pattern subsequently advocated by the Scottish Law Commission (and speedily implemented by Parliament); and English law has now belatedly caught up with Scots law in this area. In another, England still lags badly behind: the formal requirements for marriage in Scotland were put on a rationat basis ten years ago, whereas England's chaotic system continues (despite a Law Commission Report on the subject in 1973); and a place of safety order is already limited in Scotland to a maximum duration of seven dayst the period proposed for England in the

This content downloaded from 62.122.78.49 on Sat, 14 Jun 2014 16:19:30 PMAll use subject to JSTOR Terms and Conditions