Anthony Charles Faramus (Plaintiff Respondent) v The Film Artistes' Association (Defendants Appellants)
| Jurisdiction | England & Wales |
| Judge | HE MASTER OF THE ROLLS,LORD JUSTICE UPJOHN,LORD JUSTICE DIPLOCK,THE MASTER OF THE ROLLS |
| Judgment Date | 24 January 1963 |
| Neutral Citation | [1963] EWCA Civ J0124-2 |
| Court | Court of Appeal |
| Date | 24 January 1963 |
[1963] EWCA Civ J0124-2
In The Supreme Court of Judicature
Court of Appeal
From Mr. Justice Melford Stevenson
The Master of the Rolls
(Lord Denning)
Lord Justice Upjohn and
Lord Justice Diplock
MR JOHN FOSTER, Q. C. and MR MONTAGUE WATERS (instructed by Messrs Leonard Kasler & Co.) appeared as Counsel for the Appellants.
MR G. H. NEWSOM, A. C. and MR BERTRAND RICHARDS (instructed by Messrs Greenwood Milne & Lyall) appeared as Counsel for the Respondents.
Mr Anthony Charles Faramus comes from Jersey in the Channel Islands. He was born there in 1920 and as a youth he got into trouble. At the age of seventeen he took cars for joy-rides without the consent of the owners and on the 29th October, 1938, he was sentenced by the Royal Court of Justice at St. Helier to three months' imprisonment. During the war the Germans occupied the island and he was employed at an hotel used by their troops at a wage of £2. a week. Whilst there, at the age of twenty, he obtained £10. 14s. 2d. from the Treasurer by falsely representing that his wife was unemployed whereas she was getting 21s. 0d. a week. For this offence he was sentenced to six months' imprisonment. The Germans also sentenced him to a month's imprisonment for being in possession of a propaganda leaflet. When he cane out the Germans took him as a hostage to the Fort de Romanville. Whilst there he was sentenced to death for acts committed against the German Government. He was not executed but transferred to Buchenwald. Then later to the con-centration camp at Mauthausen until he was eventually liberated by the Americans. His sufferings were such that when he went to Germany he weighed 12 stone and when he was released he weighed 5 stone 10 lbs.
Since those convictions in Jersey when he was under twenty-one Mr Faramus has never been convicted again. In October, 1950, he desired to become a film artiste, and to do so he applied to become a member of the Film Artistes' Association. This is a trade union which is a "losed shop". He film artiste can get employment at any of the studios within fifty miles of Charing Cross unless he is a member of the union. In order to join the union Mr Faramus had to go before a selection committee. Then he had to sign an application form on which he was asked: "Have you been convicted of an offence?" He wrote down: "No". His application was approved by the selection committee and confirmed by the executive committee. He paid his entrance feeof two guineas and was accepted as a member. He was no doubt issued with the book of rules but he was never asked to agree them. He gradually got work, at first as one of the crowd in films, then he stood in and acted as a double for principal artistes, driving motor cars, riding horses and so forth. His income from this work increased until he was getting in 1957 and 1958 between £600 and £700 a year. He paid his monthly subscription regularly to the union, and was so well thought of that he was himself elected to the executive committee.
In 1958 it was discovered that he had had these two previous convictions in Jersey. They were nearly twenty years ago, when he was under twenty-one. But the union say that, on account of them, he is not, and, what is more, never has been a member of the union. They do not allege that he concealed these convictions fraudulently — his memory had been much affected by his war experiences — but they say that by reason of them he is automatically disqualified from membership. They have not expelled him or taken any steps to rescind or determine his membership. They say he never has been a member: so there is no necessity to expel him or consider his expulsion at all. This means that he has to give up his means of livelihood. For it is a "Closed shop" and he cannot get work as a film artiste unless he is a member of it. He has had to resort to work as a dish washer.
In order to justify their action the union rely on Rule 4(2) which says this: "He person who has been convicted in a court of law of a criminal offence (other than a motoring offence not punishable by imprisonment) shall be eligible for or retain membership in the Association". The learned Judge, Mr Justice Melford Stevenson, held that the union had no right to invoke this rule. He thought the words "convicted in a court of law of a criminal offence" in Rule 4(2) meant convicted in a court of law in England or Scotland of an offence against the criminal lawof one of those countries: and that it did not apply to a conviction in the Channel Islands. He held, therefore, that the plaintiff was still a member and granted him a declaration and injunction.
The trade union appeal to this Court. The rule, they say, is certain. It is at once both imperative and comprehensive. It has no geographical limits. No one is eligible who has been convicted in a Court of Law anywhere in the world. And this, of course, includes the Channel Islands. It has no time limit either. No one is eligible who has been convicted at any time in the distant past, even if it was twenty years ago. And it does not matter that he has lived an exemplary life ever since. Hay more. The rule knows no degrees of crime. It cares nothing how serious or trivial the conviction. (Save, of course, motoring cases not punishable by imprisonment). The wan who, as a boy, was convicted of riding a bicycle without a rear lamp is disqualified equally with the pickpocket with fifty convictions. Finally, and most serious of all, the trade union say they have no discretion to relax the rule. It is absolute. Even if all the members of one accord wished to let Mr Paramus stay in the union, it could not be done. For he is, by this conviction, completely barred from membership. He is not a member, they say, never has been and never can be.
In support of this contention the trade union rely on Martin v. Scottish Transport & General Workers Union, 1951 S. C., 144, 1952 S. C., 1. There the executive committee of the union admitted men to be members on a temporary basis for the duration of the war, but under the rules there was no power in the union itself, let alone in the executive, to admit members on a temporary basis. These men fulfilled all the obligations of membership for eight years and received the corresponding advantages: and there was ground for saying that all the other members knew of their membership and acquiesced in it (See Phosphate Lime Co. v. Green (1871) L. R. 7 C. P., 43).
Nevertheless it was held by the Court of Session and affirmed by the House of Lords that they were not and never had been members. The reason given was that it was ultra vires the union to admit members on a temporary basis and that, being ultra vires; the union it self, no ratification was possible (see 1951 S. C. at p. 144-5 by Lord Carmont and at p. 147 by Lord Russell and 1952 S. C. at p. 7 by Lord Normand.) The rules of a trade union are thus put on a par with the memorandum of association of a limited company. Truly it is a legal entity.
In view of that decision, it does appear that, if Rule 4(2) is valid and it has the construction which the trade union put upon it, then they had no power to admit Mr Faramus to membership and he is not and never has been a member.
No one can suppose that the framers of this rule intended to go so far as is now suggested. It must be limited in some way. But what is the limitation. I would like to imply the limitation suggested by the Judge, but I do not think I can. The rule clearly applies to convictions in England, Scotland or Northern Ireland. So it should also apply to convictions in the Channel Islands. There is no logical difference between them. What then is the limitation? For a limitation there must be if the rule is not to be given the most fantastic scope. My answer is this: I think the rule should be read, not as imposing an absolute disqualification for membership, but only a barrier which cm be lifted. The committee may refuse to admit a men who has been convicted of a criminal offence: but are not bound to do so. The rule is directory, not imperative.
In coming to this conclusion I base myself a good deal on the ambiguity of the word "eligible". It is capable of two meanings as Lord Chelmsford had occasion to point out a hundred years ago in Baker v. Lee (1860) 8 H. L. C. at pages 522–3. it may mean either "legally qualified"; or it may mean"considered fit to be chosen", that is, "considered suitable". And this last is the meaning which I think it bears in this particular rule. When you speak of an "eligible" young man, you do not mean a legally qualified young man. You mean a young man who is considered suitable. A father of a girl under twenty-one might lay down an edict just as unreasonably as this union has done. He might say; "No person who has been convicted. in a court of law of a criminal offence (other than a motoring offence not punishable by imprisonment) shall be eligible for marriage to my daughter". "Not eligible" there would not mean that he was not legally qualified for marriage to her. Only that he would not be considered suitable. If he did in fact marry her, the marriage would not be a nullity. So here in this rule the words "No person who has boon convicted…. shall be eligible" only mean he "will not be considered suitable" for election to membership. If he is in fact elected a member, it is not a nullity. It would be most inconvenient and unjust if it were a nullity. Take the position of Mr Faramus if he is held never to have been a member. What is to happen to his subscriptions? Or his benefits for which he has paid? Does he forfeit all of them? He has been a member of the executive committee of the union and may often have formed one of the necessary quorum of seven. Are their...
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