Gabrielle Watson, Respect and Criminal Justice, Oxford: Oxford University Press, 2020, 256 pp, hb, £80.00
| Published date | 01 July 2022 |
| Author | Annalise Acorn |
| Date | 01 July 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12711 |
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Modern Law Review
DOI:10.1111/1468-2230.12690
REVIEWS
Luke Rostill,Possession, Relative Title and Ownership in English Law,Ox-
ford: Oxford University Press, 208 pp, hb £90.00
Imagine that B steals a bicycle form A, its owner, which is then stolen from
B by C. B sues C in conversion, seeking the return of the bicycle or damages
equal to its market value.Will B prevail against C?
If one were to poll a representative sample of property scholars, the near-
unanimous answer would be ‘yes’. However,their reasons are to likely diverge,
reecting one of three distinct views about the proprietary consequences of the
fact of possession. On the rst view, B’s possession creates a ‘possessory right’ to
the bicycle. Because this right only subsists for so long as B retains possession,
B will prevail against C so long as he was in possession of the bicycle at the
time of C’s theft. According to the second and arguably dominant view, B’s
act of possession creates a fully-edged, though relative, ownership right in the
bicycle. B will thus prevail against C for the same reason that A would prevail
in an action against B. On a third view, B will prevail against C, not because
he has a property right in the bicycle, but because his possession of the bicycle
gives rise to an evidential presumption that he does.
In his sharply written, meticulously researched and rigorously argued new
book, Luke Rostill engages in an extensive analysis of the doctrinal bases, jus-
tications and implications of each of these positions, which he labels as the
‘possessory right view’ (PR), the ‘strong proprietary interest view’ (SPI) and
the ‘presumed property view’ (PP), as they apply to both land and chattels.
As its title suggests, the book commences with a discussion of the notori-
ously ambiguous concept of possession. Following leading judicial accounts of
the concept, Rostill denes possession as the temporal coincidence of one fact
about one’s control over a thing with a second, mental,f act about one’s inten-
tion to possess it (15). Consistently with D.R. Harris’s famous account (D.R.
Harris, ‘The Concept of Possession in English Law’ in A.G. Guest (ed), Ox-
ford Essays in Jurisprudence (OUP, 1961) 69), Rostill argues that what counts as
possession is context dependent. Thus,its meaning both will and should dier
depending on whether a court is confronted with a claimant who claims that
she is in adverse ‘possession’ of land, or an accused who denies that he is in
‘possession’ of a substance proscr ibed by a criminal statute (14). As someone
who has recently defended the view that possession is a signalling device the
has little to do with physical control, it perhaps unsurprising that I nd Ros-
till’s defence of the conventional view of possession conceptually unsatisfactory.
However, our apparent disagreement about the nature of possession is of less
signicance in the remainder of the book, the focus of which is not on what
possession is, but what it does.
© 2021 The Author.The Modern Law Review © 2021 The Modern Law ReviewLimited. (2022) 85(4) MLR 1093–1097
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