Year: 1991
Type: article
Abstract: Nursery riddle: What dogs have five legs?Answer: No dogs.No dogs have five legs.(No dogs are dogs, because don't we call them dogs?)At about the same level of puerility, but using adult language, consider this one.When is an arrest not an arrest?Answer: When it is an illegal arrest.(An illegal arrest is not an arrest, because it has none of the legal consequences of an arrest.But it must be an arrest, because don't we call it that?It is the kind of arrest known as an illegal arrest.Yes, just as a five-legged dog is the kind of dog known as a no-dog .)Before 1988 there was a sharp split of lordly opinion on this grave subject.Six statements were made; three, which I will make bold to call the silly ones, supported the proposition about illegal arrests, while three, the sensible ones, rejected it.In Murray v Ministry ofDefence (1988),' Lord Griffiths, speaking for the Appellate Committee, approved three of the six, these being all three of the silly ones, while not mentioning the others.2The chance of drawing these three concurring statements out of the recorded six at random would have been one in 20.So the likelihood is that some factor was at work in making the selection.The factor, of course, is the time-honoured practice of judges to choose from the available authorities only those that accord with their own views.For the purpose of discussion it is enough to reproduce, as a representative of the three favoured by Lord Griffiths, a remark of Viscount Dilhorne: 'Arrest' is an ordinary English word . . .Whether or not a person has been arrested depends not on the legality of the arrest but on whether he has been deprived of his liberty to go whcrc hc pleases.
Source: Modern Law Review
Author: Glanville Williams
Institution: University of Cambridge
Language: English
Topic: Criminal Law and Evidence
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: bronze
OpenAlex ID: W2046635638