A Public Law Issue?

Publication Date01 November 1990
Date01 November 1990
AuthorColin Crawford
DOIhttp://doi.org/10.1111/j.1468-2230.1990.tb01844.x
i%e Modern Law Review
[Vol.
53
police or gives evidence the less likely he is to assert a non-existent control over his drinking.
On the contrary, as his mind clears (a process which may take months or years to complete)
he becomes conscious of the extent to which the control which he thought he had was
illusory. Taking satisfactory instructions from the alcoholic is thus usually an extremely
difficult process until recovery has at least started. It is therefore as much the responsibility
of a lawyer, as it is of a doctor or psychotherapist to advise his alcoholic client to accept help.
Sentencing Considerations
The decisions of the Court of Appeal in
Tandy
and
Gittens
appear to have been prompted
by a tendency on the part of prosecuting authorities to refuse to accept manslaughter pleas
in homicide cases which are viewed as particularly serious. This seems a wholly unnecessary
waste of public resources. The maximum sentence for manslaughter is the same as the
mandatory sentence for murder, namely life imprisonment. Serious though it undoubtedly
is for homicide to be committed by someone who is affected by alcoholism it is surely
not as serious as the same offence committed by someone who is sober and in full possession
of his faculties. Is an alcoholic who has been labelled a murderer more likely to recover
from his condition in prison and stay sober when he is released than an alcoholic who
has only been convicted of manslaughter? Should a drug addict be treated more favourably
than an alcoholic? Should the courts pass the problem of deciding how much time the
alcoholic should spend in prison entirely to the Parole Board by imposing life sentences,
or should they not make more effort to make the trial serve a useful social purpose, such
as to bring home to an alcoholic defendant the effect of his drinking?
If alcoholism is regarded as a mitigating factor (which is implicit in the.doctrine
of
‘diminished responsibility’), the alcoholic is encouraged
to
focus on it himself, to co-operate
in bringing it into evidence and to say what he is doing or proposes to do about it and
how his recovery can fit in with and be encouraged by the sentence of the Court.
A
Public
Law
Issue?
Colin
Crawford*
The proper place of estoppel within public law has long been a source of uncertainty and
debate. It had been thought that the high point
of
intervention by the courts on the basis
of this doctrine had passed, given that the possible damage to both the administrative process
and the public interest by the widespread application of this private law concept within
the field of public law had been appreciated.’ In addition, there was Lord Scarman’s
warning in
Pioneer Aggregates
that it will normally ‘be an impermissible exercise of the
judicial function
to
go beyond the statutory provision by applying such principles merely
because they may appear to achieve a fairer solution to the problem being considered.’2
On the other hand, many judges had appeared to resist the inevitable conclusion that
*Senior Lecturer in Law, University of Birmingham.
1
See
Western Fish Products
v
Penwith
DC,
[1981] 2 All
ER
204, which, after the wide adoption of the
principle in cases such as
Lever Finance
v
Westminster
City
Council,
[I9711
1
QB 222, reaffirmed the
generally restrictive approach of
Southend-on-Sea
Corpn
v
Hodgson
[1962]
1
QB 416, noted Crawford
(1982) 45 MLR 87.
Pioneer Aggregates
v
Secretary
of
State
for
the Environment
[I9841 2 All
ER
358.
2
814

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