Letter of the Law
Out of Court
CLINE By R. A.
MANY cases in court by the complexity of their facts excite little public comment When decided in spite of the importance of the Principles which they illustrate, and are only rescued from oblivion by the law reports several months later. Such a one is Commissioners of Customs and Excise v. Cure & Deeley Ltd., de- cided in July, the latest battle in a long cam- Paign waged by various government departments to engage in what amounts to legislation barring its victims from recourse to the courts; fortunately this campaign has not, of late, been going too well. This time it was the Commis- sioners of Customs, who claimed the right, under regulations made by themselves, on a failure by the subject to make a purchase-tax return, 'to determine the amount of the tax appearing to them to be due ... and demand payment thereof, Which amount shall be deemed to be the proper tax [that is, even if it is not] . . . and shall be Paid within seven days of such demand unless Within that time' some other amount (to be paid Irnmediately) was shown to their satisfaction to be the proper tax. It was admitted that if this regulation, which has existed since 1945, could Properly have been made by the commissioners, It excluded the jurisdiction of the courts to decide What was 'the proper tax'; and the justification for this extraordinary provision, and for the farcical period of seven days allowed to the subject to discover what was the proper tax, and !onvince the commissioners of it, was presented In the following argument:
The scheme is a fiscal mechanism of great
originality and has as its linchpin accurate returns made by registered persons who have to retain their books for a number of years. These books contain particulars of each transaction with retailers which attract tax. The books are kept by the wholesaler so there can be a comparison between them and the retailers. . . . The whole system of collection breaks down when returns are false. On discovery of facts tending to show falsification or incompleteness of returns, it is possible for the commissioners to make assessments by virtue of highly confidential inquiries of cus- tomers. These customers might not be pre- pared to give information if it was made known to the suppliers that they had done so.
Apart from the fact that the regulation dealt nt only with criminally false but inadvertently Inaccurate returns, this argument betrays an astonishing state of mind. As Mr. Justice Sachs Pointed out in a judgment of considerable force, 1 he findings of fact have to be based on evi- dence which cannot be tested in the normal way either for bias or reliability; no opportunity becomes available to the party charged to rebut or explain those facts; and rulings of law would naturally tend, and indeed under civil service procedure almost inevitably must, follow the line of the departmental view instead of being formed independently after argument. On top of that comes such increase in margin of error as may be consequent on lack of previous judicial experience on the part of those who determine and report accordingly.' In addition, if the commissioners were right on the interpretation of the enabling Act of Parliament. it meant that they had power by regulation, among other things to detain a taxpayer in their offices to obtain relevant information from him; to stop him from drawing on his bank account while indebted to them; to take his money away from him to satisfy such debts; and to impose new penalties and provide for recovery of debts in courts which, would not otherwise have jurisdiction.
Happily, the commissioners' argument did not prevail. The proposition that the enabling Act— which gave them power to provide by regulation for any matter for which provision 'appears to them to be necessary'—permitted the creation of such totalitarian powers as they had in fact allotted to themselves, was dealt with drily by the judge: 'That formula ("appears to them to be necessary") was suggested to be a "drafting mechanism employed for the exclusion of the jurisdiction of the court" on the footing that "modern drafting technique is to use words which do not exclude jurisdiction in terms but positively repose arbitrary power in a named authority." The art of excluding the subject from benefits by a positive definition which does not specifically refer to the exclusion is, of course, one that has been brought to a high degree of perfection in Whitehall; and it attracts profound respect for the craftsmanship of those whose duty it is to employ it. On the other hand it does not always lead to a quick appreciation by others of the effect of legislative provisions.' In the event, he decided that the regulation was ultra vires. 'First, it is no part of the functions assigned to the commissioners to take on them- selves the powers of .a High Court judge and decide issues of fact and law between the Crown and the subject; Secondly, it renders the subject liable to pay such tax as the commis- sioners believe to be due, whereas the charging sections impose a liability to pay such tax as in law is due. Thirdly, it is capable of excluding the subject from access to the courts and of defeating pending proceedings.'
The result of the case was satisfactory, but two regrets remain; one is that a government department should still require such elementary instruction on the rights of subjects; the other is that the House of Commons failed to exercise their statutory right to annul the regulation—and possibly others similarly worded—within twenty-eight days of their being laid .before them. On the other hand, as the judge pointed out, this will only happen 'if their effect is appre- ciated.' It almost looks as if legislators are hood- winked by the skill of their own draftsmen.
Law and literature, like most near neighbours, have generally regarded each other with a good deal of suspicion in spite of their mutual indebt- ness. For all the contempt in which the law was held, for example, by Dickens. Mr. Pick- wick's day in court is one of his more celebrated creations, and although judges may sniff, a murder trial in a play is well known to attract almost as many spectators as a murder trial in a court. The obverse of this—the literary side of law rather than the legal side of literature—is less familiar, and Mr. Blom-Cooper, who is not only a barrister but the legal correspondent of the Guardian and the Observer, and so built for the part, is to be congratulated on an excellent and original selection for his anthology of 'Great Writing in and about the Law.** One of the more enthralling examples is the then Senior Crown Prosecutor's notes for the prosecution of Crippen, which in its precision and arrangement approaches a grim poetry :
Human remains were found in the cellar of 39 Hilldrop Crescent.
They Were headless limbless boneless and practically all indications of sex had been removed.
There remained only some of the viscera and some pieces of flesh.
Mr. Blom-Cooper has avoided obvious plums such as the Wilde and Whistler trials, although he includes Russell's famous cross-examination of Pigott before the Parnell Commission. Other notable entries are the similarly ironical pleas in mitigation made by Socrates and by Gandhi, some well-chosen judgments, including several characteristically elegant specimens from Lord Justice Harman, and a fearful assault by Camus on capital punishment as practised in France. There is plenty of room for a sequel to this book, as Lord Birkett suggests in his foreword.
*The Law as Literaiure. Edited by Louis Blom- Cooper. (Bodley Head, 30s.)
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