REVIEWS
| Published date | 01 September 1968 |
| Date | 01 September 1968 |
| DOI | http://doi.org/10.1111/j.1468-2230.1968.tb01212.x |
REVIEWS
JUSTICE
OF
TFIX
PEACE.
By
LEO
PAGE.
Third
Edition
by
R.
M.
JACKSON
and
P.
J.
HALNAN.
[London:
Faber
and
Faber
Ltd.
1967.
278
pp.
(with
index).
42s.
net.]
THE late Sir Leo Page was Clerk of Commissions in the Lord Chancellor’s
Oftice for many years. He brought unrivalled experience, a clear style, and
a
sympathctic understanding of the work of a justice of the peace to the
writing of this book, which in my view is much the best introduction to his
work that a magistrate can study.
It
appeared in
1936
when its value was
at once rccogniscd, and even in that rather supine period in the history of
the magistracy
a
new edition would have been quickly called for but for the
outbreak of the war. Sir Leo did in fact produce a second edition in
1947
but during the next twenty ycars not only the law administered by justices
of the peace, but the quality and training of those chosen for the work, and
the organisation of their courts underwent changes which, in relation to
certain of their aspects at any rate, could propcrly be called revolutionary.
As
a
result, although niucli of what the author had said remained of grcat
value, from the factual point of view the book had become completely out
of date, and something in the nature of a new book rathcr than just
a
new
edition was called for. This, Professor Jackson has produced in collaboration
with the Justices’ Clerk for Cambridgcshire.
Profcssor Jackson is better qualified for this task than anyone else
I
can
think of. His realistic approach to problems
of
legal administration first
became evidcnt in his
Mochinery
of
JUStiCS
th
Enghnd.
Not only is he
a
magistrate of long standing himself, but he spent a number
of
years
in
the Criminal Division of the Home Office at a time when that department
was more closcly concerned with the work of the magistracy than it
is
today, and as
a
result he became secretary first to Lord Roche’s committee
on Justices’ Clerks, and afterwards to the Royal Commission on Justices of
the Peace. He has watched and taken part in the developincnts which
followed from the Reports of these Committees,
60
that he spcaks as an
active participant in the work of the magistracy as well as an undcrstanding
and syrnpathctic student of the system, but one who is prepared to be critical
where necessary. And he has had the tcchnical assistance of an experienced
clerk. In the result, there is very little which a ncwly appointed and aspiring
magistrate needs to know which
he
will not find explained in these pages.
From what
I
have alrcady said
it
will have been gathercd that the greater
part of the material in the book is new. Professor Jackson has kept as
much of the original as was practicablc, somctirncs even preserving out-of-
date passages for the purpose of bringing out how important the recent
developments have been. Fortunately, he has something of Sir Leo Page’s
clarity of style, and the dovetailing has been
so
skilfully carried out that the
joints scldom jolt the reader-a noteworthy exception occurs on pages
147-148,
in connection with fines, where the requirements about thc granting
of time for payment are set out twice. From time to time there is a sharp
difference
of
opinion between author and editor, as in the chapter on Evidence
on which Sir Leo took
up
a
rather orthodox position while Professor Jackson
is an adherent of the more common-sense modern school
:
while he expresses
his view about such decisions as that of the House of Lords in
Myers
V.
D.P.P.
(
[1964]
8
W.L.R.
146)
with
a
brutal simplicity,” describing
it
as
“
a
bit of old-fashioned nonsense,” he sets out the Leo Page standpoint
both
clearly and understandingly. The two chapters on Evidence indeed
throw
581
VOL.
31
20’
582
THE MODERN LAW REVIEW
Vor..
31
a
flood of bright light into the gloomy mystcries
of
this suhjcct, which may
wr11 niilke some young rnngistratcs think that they know what
it
is all
about, only to be tlisillusioncd when next they hear an argument by two
lnwycrs aI)out the hearsay rule.
Rrnong the other
“
new
”
subjects which may be mentioned are the
trnining of niagistratcs
:
it
is to be hoped that
this
book will be trcatcd
as
a
“must” by tliosc who are responsible for the arrangements for this: also
scntcncing, not that much
of
what Sir Leo Page wrote on this subjcct is not
still highly relevant, but that the new possibilities opened up under the
Criminal Justice Act
1948
and later statutes and orders are
so
extcnsive
and important that two chapters, and excellent ones, are now required even
for an outline discussion of this, which
is
surely of as much importance as
the subject of the trial itself.
There is substantial rewriting in all the chapters, both those which are
basic such as Practice and Procedure, and those which are more auxiliary
such as those
on
Juvenile Courts and Domestic Proceedings. The useful
chapter on Chairman and Clerk should be noticed.
As
a result of the
remarks of Lord Goddard C.J. in the
EU8t
Kerder
Justice8
Case
([1952]
2
Q.B.
719),
which were not sufficiently carefully considered, the question of the
retirement of their clerk with the justices has been given
a
consideration
possibly more detailed than it requires: certainly it caused quite
a
stir.
As one would expect with Professor Jackson some of the views expressed
are very personal, and will not be acceptable to many experienced magistrates
and chairmen. On the other hand, he is sometimes surprisingly ready to
accept the not too well based views of High Court judges without discussion.
A
good example
is
Lord Parker’s dictum that defence certificates should be
granted in all cases where the defendant’s mcans do not enable him to pay
for legal aid. This is clearly wrong. The test laid down by the statute
is “the interests
of
justice”-if Parliament had intended
to
establish the
means test
as
the sole test it would have used words appropriate to that end.
Lord Parker’s dictum is
a
good example of the danger of the
ez
cathedra
statement made without the advantage of an adequate argument addressed to
the court by the bar which, after all, is possibly the most solid basis
of
what
Professor Lawson called
‘I
the rational strength
of
the common law.”
C.
THE
CONTRIBUTION
OF
ENGLISH LAW
TO
SOUTH
AFRICAN
LAW;
AND
THE
RULE
OF
LAW
IN
SOUTH AFRICA,
BY
THE
HON.
0.
D.
SCHREINER.
The
Hamlyn
Lectures, 19th series.
[London
:
Stevens
and Sons; South
Africa: Juts
&
Co.
Ltd.
1967.
xii
and
105
pp.
80s.
net.]
QUITE
a
juristic war has come into existence among South African writers
on legal topics in the last decade due mainly to certain decisions of the
highest courts in the Republic, wherein the judges have indicated
a
disposition
to get rid of certain
of
the elements of English law which the modern South
African law contains, especially in the law of delict. Prior to these decisions
there were lawyers who, on nationalist political grounds of the narrowest
chauvinism, expressed dissatisfaction with the foreign elements in the law
which were drawn from
a
variety of sources. The general body of lawyers
had taken these sources for granted and never seemed to And
in
them any
disadvantage
or
defect. In fact, the influence of such sources, and, in particular,
that of the English law in the development of modern South African law, has
been widespread and profound. To the reviewer, not only has the effect been
to bring the antiquated and rather inflexible principles of the Roman-Dutch
system into the twentieth century, but something of value and interest
to
civil
and common law lawyers alike has been produced. The result has, in many
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