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Wilfulness, a lesson in ambiguity

Published online by Cambridge University Press:  02 January 2018

J.A. Andrews
J.A. Andrews*
Affiliation:
University College of Wales, Aberystwyth
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Extract

Others, I am not the first,

Have willed more mischief than they durst.

Many words do not have a single meaning. There is rarely a problem where two different words of the same spelling have a different meaning as the context usually will clarify which of the alternative words is intended. The difficulty arises where the same word has more than one meaning and the different meanings are not unrelated to each other. The word wilful is such a word and much would have been gained if it had been struck out of the Parliamentary draftsman's dictionary many years ago. Very popular in Victorian legislation, its use in modern drafting is less common, but it still haunts the statute book providing problems of interpretation and illustrating the underlying conceptual weakness of much of English law.

Type
Research Article
Information
Legal Studies , Volume 1 , Issue 3 , November 1981 , pp. 303 - 325
Copyright
Copyright © Society of Legal Scholars 1981

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References

1. A. E. Housman, A Shropshire Lad, XXX.

2. See Oxford English Dictionary definition.

3. See e.g. Walker, The Oxford Companion to Law, p. 1300. Jowitt's Dictionary of English Law, 2nd ed, p. 1899.

4. On which point the judgments given in the House of Lords in Hyam v Director of Public Prosecutions [1975] AC 55 are not without interest. See especially the judgment of Lord Diplock at 86.

5. Section 31.

6. Section 51(3).

7. Section 36.

8. Section 14(3).

9. E.g. Highways Act 1959, s. 121(1).

10. Police Act 1964, s.51(3).

11. Larceny Act 1861, s.23.

12. (1885) 31 Ch D 168.

13. At 174.

14. [1936] 1 KB 53. The case is discussed later in this article.

15. Larceny Act 1861, s.23. Repealed by the Theft Act 1968, Schedule 3.

16. (1843) 13 Sim 477.

17. At 485.

18. (1877) 3 QBD 195.

19. At 206.

20. [1925] 1 Ch 407.

21. At 434.

22. Companies Act 1948, section 205 now provides that any such provision in the Articles of a company or elsewhere is void insofar as it purports to exempt any officer of the company from liability for ‘negligence, default, breach of duty or breach of trust.’

23. [1905] 2 KB 532, at 535. Lord Alverston was himself adopting in large part the definition given by Johnson J in Graham v Belfast and Northern Counties Ry Co [1901] 2 IR13.

24. (1925] 1 Ch 407, at 522.

25. J. E. Stannard, ‘Wilful Default’, 1979, Conveyancer and Property Lawyer, 345.

26. For ready reference to other obsolete nineteenth-century authorities see Stroud's Judicial Dictionary, 4th edn, pp. 3015–3021.

27. (1962), 40 TC 209.

28. At 215.

29. (1969), 46 TC 497.

30. (1967). 44 TC 515.

31. At 520.

32. [1931] 1 Ch 572, and see also Re Munton [1927] 1 Ch 262, but cf. Re Brier (1882) 26 ChD 238, at 243.

33. Maugham J had also appeared for the respondent in Re Leeds City Brewery heard in the Court of Appeal in 1923. Although not reported until [1925] 1 Ch 532 where it is appended to the Re City Equitable Fare Insurance Co report, Re Leeds City Brewery was relied on by counsel and by Romer J in Re City Equitable Fire Insurance Co. Warrington W had sat in the Court of Appeal in the former case. It involved the specific issue of an indemnity clause in a trust deed and Warrington U adopted the narrow definition of wilful breach of trust as implying ‘deliberately and purposely doing something which he knows, when he does it, is a breach of trust.’

34. See e.g. Stannard, 1979 Conveyancer and Property Lawyer, 345; Parry and Clarke, The Law of Succession (7th edn), p. 234; Potter, 47 Law Quarterly Review, 330; Holdsworth, 47 Law Quarterly Review, 463, Jones 22 Modern Law Review, 381; Pettit, Equity and The Law of Trusts (4th edn), pp. 334–337; Hanbury and Maudsley, Modem Equity (10th edn), pp. 497–8.

35. Parry and Clarke, The Law of Succession (4th edn), p. 233–234.

36. Megarry and Wade, The Law of Real Property (4th edn), p. 915.

37. [1976] 1 WLR 924. See also Bartlett v Barclays Bank [1980] 2 All ER 92, at 97.

38. Re City Equitable Fire Insurance Co [1925] 1 Ch 407, at 434.

39. These are not the only nouns to which the adjective is coupled, but they are the most frequently used. Other common phrases are ‘wilful breach’ (Town Police Clauses Act 1847, section 21); ‘wilful damage’ (Waterworks Clauses Act 1847, section 23); ‘wilful delay’ (Corrupt Practices Prevention Act 1854, section 14); ‘wilful disobedience’ (Merchant Shipping Act 1894, section 376(1) and the old RSC, Ord. 43, r. 31); ‘wilful insult’ (County Courts Act 1888, section 162); ‘wilful interference’ (Factories Act 1961, section 143(1)); ‘wilful obstruction’ (Public Health London Act 1891, section 116) and ‘wilful refusal’ (Trustee Act 1925, section 44).

40. In Elliott v Turner, 13 Sim 477, at 485.

41. See Lewis v Great Western Railway Co (1877) 3 QBD 195.

42. Section 27.

43. Section 1. A number of other grounds were also available under this section, including, e.g., desertion, cruelty and adultery.

44. See Neville Brown, ‘The Offence of Wilful Neglect to Maintain a Wife’, 23 Modern Law Review, 1.

45. Section 3 creates a criminal offence of wilfully refusing or neglecting to maintain a wife or family where able to do so.

46. See Morton v Morton [1942] 1 All ER 273; Jones v Jones [1924] P 203.

47. [1960] P 158.

48. At 178.

49. At 179–80.

50. [1973] Fam 120.

51. At 131. Italics added.

52. Jones v Jones [1959] P 38.

53. See National Assistance Board v Prisk [1954] 1 All ER 400, at 401, (per Lord Goddard).

54. See Magistrates Courts Act 1952, s.73(1).

55. Matrimonial Causes Act 1973, section 12(b).

56. Horton v Horton [1947] 2 All ER 871.

57. Dickznson v Dickinson [1913] P 198.

58. Jodla v Jodla [1960] 1 WLR 236.

59. (1972] 1 WLR 105.

60. [1973] QB 702. See also R v Senior [1899] 1 QB 283; R v Domes (1875) 1 QBD 25 and Glanville Williams, Criminal Law, The General Part pp. 143–146.

61. Whether the child was his was not clear, but she was certainly in his care.

62. [1973] QB 702, at 707, emphasis added.

63. The idea of negligent neglect is not tautologous. Glanville Williams points out that ‘neglect’ describes the condition of the child (perhaps more properly it describes the relationship between parent and child) whilst ‘negligence’ refers to the fault of the parent. See Glanville Williams, Textbook of Criminal Law, p. 87.

64. See J. C. Smith 1973 Criminal Law Review 238, at 240.

65. Supra, n.16.

66. See discussion of Bannan v Bannan, supra, n.50.

67. [1980] 3 All ER 899.

68. At 904.

69. [1981] 1 All ER 961 at 967. In his definition in Caldwell, Lord Diplock includes the man who has not given any thought to the possibility of risk, that is not the same thing as not caring whether a child is at risk or not. For a trenchant criticism of Lord Diplock's judgment in Caldwell see J. C. Smith, 1981 Criminal Law Review pp. 393–396, but cf. McEwan and Robilliard (1981) 1 LS, pp. 267–286.

70. [1980] 3 All ER 899, at 914.

71. At 910.

72. At 904.

73. For an illustration of the range of statutes using the word, see Edwards, Mens Rea in Statutory Offences, pp. 30–31.

74. (1841) 2 M & Rob 339.

75. [1936] 1 KB 53. See Stallybrass, 52 Law Quarterly Review 60 and Edwards, Mens Rea in Criminal Offences pp. 43–46.

76. Hortm. v Gwynne [1921] 2 KB 661.

77. [1936] 1 KB 61 (italics added).

78. [1921] 2 KB 661; cf. Taylor v Newman (1863) 4 B & S 89 and Farey v Welch [1929] KB 388.

79. (1863) 4 B & S 585 and see also The Law Society v United Service Bureau (1934) 98 JP 33.

80. (1876) 1 Ex D 423. See also Jones v Taylor (1858) 1 El & El 20. Cf. Mayor of High Wycombe v Conservators of River Thames (1898) 78 LT 463 and Foulger v Steadman (1872) LR 7 QB 65.

81. (1897) 77 LT 56.

82. At 31.

83. See R v Sheppard [1980] 3 All ER 899, at 906 (per Lord Diplock) and 908–9 (per Lord Edmund Davies). Sweet v Parsley [1970] AC 132.

84. (19491 2 KB 354 esp. at 369; Edwards, Mens Rea in Criminal Offences, pp. 34–35 and 48–51.

85. [1951] 2 KB 799. See also Bullock v Turnbull [1952] 2 L1 L Rep 303 on a charge under the Public Health Act 1936.

86. [1976] 3 All ER 794. Cf. Betts v Stevens [1910] 1 KB land Bastuble v Little [1907] 1 KB 59. See also Eaton v Cobb [1950] 1 All ER 1016 on a charge of wilfully obstructing the highway and Rice v Connolly [1966] 2 QB 414.

87. 113th edn. (1981), at 44.

88. (1958] 2 All ER 289.

89. [1921] 2 KB 119.

90. R v Gould [1968] 1 All ER 849.

91. See R v Badger (1856) 25 LJMC 81 per Lord Campbell and R v Prince (1875) 2 CCR 154 at 161 per Brett J.

92. See the discussion above and the works referred to in footnotes 35 and 36.

93. R v Lowe. supra, n.60.

94. It is not necessary to show that he knows his act to be criminal. Ignorance of the legal consequences of his act is no defence. See Arrowsmith v Jenkins [1963] 2 QB 561, to the effect that the accused's belief in his lawful authority to do something is no defence. On the other hand, if the accused is exercising a right, his conduct cannot amount to an offence. So a man is not guilty of wilfully obstructing a police officer in the execution of his duty when he refuses to answer questions if he is not obliged to answer. Rice v Connolly [1966] 2 QB 414.

95. Supra, n.32.

96. Supra, n.27.