DD as trusteees for sale of a parcel of land agreed orally to sell it to a woman X for i?? 6000, and drew up the necessary documents to formalise the sale. Before the documents had been signed, a man P made an offer of i?? 6500: DD felt themselves morally bound to honour their earlier verbal agreement, but P sought an injunction requiring them to sell to him as maker of the higher offer.
The judge said an individual might be praised as honourable if he took a financial loss by keeping his word, but trustees are legally bound to get the best price they can for the beneficiaries.[In the light of further developments, he then made an order requiring DD to sell to X for her improved offer of i?? 6600, with most of the legal costs to be paid out of the trust. ] Harries v Church Commissioners [1992] 1 WLR 1241, Nicholls VC The Bishop of Oxford (himself a Commissioner) sought a declaration that in managing Church investments the Commissioners should give priority to the need to act in accordance with the Church’s moral teachings.The judge said the Commissioners’ existing policy of not investing in armaments, gambling, tobacco or newspapers was lawful because there remained a wide range of satisfactory alternatives, but if their “ethical” decisions were to jeopardise the financial benefits they would be failing in their legal duties. Obiter, the trustees of a cancer research charity might perhaps refuse to invest in the tobacco industry whose activities were diametrically opposed to those of all the beneficiaries, but the members of the Church of England held diverse moral views.R v Somerset County Council ex p Fewings [1995] 3 All ER 20, CA The Council resolved to ban stag-hunting on land which it owned, and Hunt officials sought judicial review.
Granting certiorari to quash the decision, Laws J and the Court of Appeal (Swinton Thomas LJ dissenting) said members of the Council were not allowed to take moral considerations into account in making their decision. They were required to act in the interests of the good management (by implication, the economic good management) of the land, and must not allow themselves to be swayed by irrelevant factors.No moral blame attaches to a person who is doing her best, but he or she may still be legally liable for the consequences of an accident caused by lack of experience of skill. Nettleship v Weston [1971] 3 All ER 581, CA A learner driver D went out for her first lesson, supervised by a friend P. D crashed the car into a lamppost, and P was injured. P’s claim for damages was upheld by the Court of Appeal, subject to a deduction for contributory negligence.
Even learner drivers, said the Court, are to be judged against the standard of the reasonably competent driver.The fact that a particular driver is inexperienced and incompetent does not excuse his falling short of this standard. Morally the learner driver is not at fault, said Lord Denning MR, but legally she is liable to be because she is insured and the risk should fall on her; Megaw LJ added that tortious liability has in many cases ceased to be moral blameworthiness. A person whose inhibitions are released by involuntary intoxication may still be criminally liable. R v Kingston [1994] 3 All ER 353, HLA man D with homosexual paedophilic tendencies went to the flat of another man X. Unknown to D, X intended to lure D into a compromising situation in order to blackmail him, and drugged D’s coffee. X then took D into a bedroom where there was a 15-year-old boy, also drugged. D performed various acts with the boy and was subsequently charged with indecent assault.
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Potts J directed the jury that D’s intoxication was irrelevant, and that a drugged intent was still an intent, and the jury convicted.The Court of Appeal allowed D’s appeal but the House of Lords restored the conviction. It is no answer, said Lord Mustill, for the defendant to say that he would not have done what he did had he been sober, provided always that whatever element of intent is required by the offence is proved to have been present. The absence of moral fault on the part of the defendant is not sufficient in itself to negative the necessary mental element of the offence, though it is a significant factor in mitigation of sentence.THE ENFORCEMENT OF MORALITY One of the questions on which legal scholars are sharply divided concerns the extent to which the law should reflect common morality. Is the fact that an act is immoral (or that many people think it is immoral) a sufficient reason on its own for making that act illegal? There is a widespread belief that “freedom” is a good thing in itself, so that any law impinging on freedom (as all laws inevitably must) needs to be justified.The twentieth century, and the nineteen-sixties in particular, are regarded by many people as the time of the “permissive society”, but in terms of law nothing could be further from the truth.
Over the past hundred years, under governments of all parties, the legal constraints on individual freedom have multiplied many times over – citizens can no longer build houses where they like, treat their animals how they like, drink when they like, or dispose of waste as they like. Only in a very small area of sexual morality did the sixties mark any enhancement of individual liberty.The debate on the enforcement of morality is based on certain assumptions not shared by all jurists, but for the purposes of the debate it must be assumed that there are in any given society such things as absolute moral standards which can in principle be determined. Both sides readily accept that immoral acts which manifestly harm others, whether individuals or society generally, are properly punishable. Both sides also accept that the law may legitimately regulate some things with no moral content (such as the proper side of the road for driving) but that morality commonly influences the content of law.A subsidiary debate is concerned with paternalism – the extent to which the law may properly intervene to prevent people causing harm solely to themselves, as for example by smoking or failing to wear a seat belt – but this is not a primary issue. Isaiah Berlin sought to distinguish between negative and positive liberty. Negative liberty, he said, is the absence of constraint on human activity, while positive liberty corresponds to the “truly free” state which may be attainable only by compulsion.
Rousseau certainly believed that man could be “forced to be free”, and something of the same attitude can be seen in compulsory education, in which children are coerced into attending school in order that they may have the freedom to develop fully as adults. It is only rarely that the law seeks to enforce a positive moral good, though the fines levied during the English Commonwealth period on those who failed to attend church are a rare exception. The emphasis of law is more often on the prohibition of behaviour regarded as immoral. Nineteenth century writersThe mid-twentieth century relaxation in the law governing sexual morality was due in no small measure to the Wolfenden Report, published in 1957. Sir John Wolfenden drew on the work of John Stuart Mill, who stressed in his essay On Liberty (1859) the importance of individual liberty. Mill argued that “self-government” does not really mean the government of each by himself but rather the government of each by everyone else, and that “the will of the people” means the will of the most numerous and vociferous part of the people, who may actually want to oppress the rest.It follows, he said, that the tyranny of the majority should be included among the evils against which society must be on its guard. There must be a limit to the legitimate interference of collective opinion with individual independence, and the practical question is where that limit should be set.
“The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number,” he wrote, “is self-protection.The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. ” On other matters, it is permissible for other members of society to reason with the individual and seek to persuade him to conform with accepted moral standards, but not to impose compulsion. Mill admitted that there are uncertainties and exceptions to this principle.
He conceded that society may make laws to protect children and primitive people who do not have the maturity to make their own choices, but ignored the fact that few adults really understand fully the consequences of their choices. He also accepted that the liberty of the individual may be limited if the individual makes a nuisance of himself by the exercise of that liberty. He was unsure whether the law should intervene when individual misbehaviour became blatant: given that fornication was immoral (a position from which Mill did not dissent), his credo was that it should not be illegal.But does that mean that the law should also refrain from punishing those who advocate it publicly, or who make a living from prostitution? Here he was less certain.
The opposite view was held by Sir James Stephen, one of the leading criminal judges of the late nineteenth century. He felt the prevention of immorality (which he defined by “the unanimous opinion of society”, though probably meaning the opinion of the ruling class of his day) was a proper end in itself, justifying legal intervention.”I think that the attempt to distinguish between self-regarding acts and acts which regard others,” he wrote in Liberty Equality Fraternity (1874), “is like an attempt to distinguish between acts which happen in time and acts which happen in space.
Every act happens at some time and in some space, and in like manner every act that we do either does or may affect both ourself and others. I therefore think that the distinction [made by Mill] is altogether fallacious and unfounded …. There are acts of wickedness so gross and outrageous that …
.[protection of others apart] they must be punished at any cost to the offender and punished if they occur with exemplary severity. ” The Wolfenden Committee preferred Mill’s views, and applied these views in two major recommendations which were later implemented by legislation. Prostitution ceased to be a crime in itself (since it harmed no one except, arguably, the prostitute and her client, both of whom were consenting), but the laws against soliciting (which causes harm by annoying innocent passers-by) and living off immoral earnings (which involves the harm of exploitation) were strengthened.
Homosexual acts between consenting adult males in private were also decriminalised by the Sexual Offences Act 1967, though it was not until December 2000 that the age of consent was reduced to 16, as it has long been for heterosexual acts. It is not the duty of the law, said the Report, to concern itself with immorality as such … it should confine itself to those activities which offend against public order and decency or expose the ordinary citizen to what is offensive or injurious.
The Hart-Devlin debate Patrick (later Lord) Devlin was among those who gave evidence to the Wolfenden Committee, and when the Report first appeared he welcomed its findings. Over the following months he modified his views, however, and while still endorsing the specific proposals above began to speak and write against the general proposition that the law should not be used to enforce morality. His arguments were set out in full in The Enforcement of Morals, published in 1959.He argued that morality is not simply a matter of individual judgement, but that any society must have a recognised common morality held by most or all of its members. Society has a right to protect its own existence, he said, and just as treason is punishable because it threatens the survival of the state, so society is entitled to punish any act which weakens the shared morality which binds society together. (This differs from Stephen’s argument: Stephen saw the preservation of morality as an end in itself, whereas Devlin was concerned with maintaining the fabric of society.) How is the common morality to be determined? For the purpose of the law, said Devlin, immorality is what every right-minded person is presumed to consider immoral. That is, if the reasonable man believes that a practice is immoral and believes too (rightly or wrongly) that no right-minded person could think otherwise, then the practice is indeed immoral.
The circular nature of such a definition, and its use of words such as “reasonable” and “right-minded”, makes it less than helpful in practice!Devlin even went on to assert that by this test abortion was immoral but that a large number of people (who presumably were not right-minded) did not appreciate this. Hart condemned such arguments, in any case, and insisted that “just what people happen to believe or accept” is not to be equated with correct standards of morality from a critical point of view. Devlin said society has a right to punish any act that offends against its shared morality, but that it should exercise this right only sparingly.
In particular, individual privacy should be respected wherever possible, but even private acts of vice may make the individual a less useful member of society and may therefore be punished by law if they go too far. He recognised that some (immoral) acts might be tolerated – toleration being different from approval – and that the proper time for punishment is when the acts go beyond the limits of toleration so as to become injurious to society. The legislator, he said, must gauge the intensity with which a popular moral conviction is held, because only when the opposite is generally thought intolerable can the criminal law properly be used.
