Customs and Excise Commissioners v Polok and Another (2002)
P and others ran an escort agency. The Customs and Excise Commissioners stated that they should be registered for value added tax. A tribunal ruled that they were not registrable because their business activities were unlawful, consisting of the procurement of women for the purposes of prostitution.
On appeal, Mr Justice Jacob allowed the appeal and ruled that the supply of escorts was lawful. The activities of the escorts and their customers were separate from the service of the taxpayers.
As the Latin poet (Vespasian -Titus Flavius Vespasianus – Roman Emperor from AD 69) said, pecunia non olet (money doesn’t smell). The principle of fiscal neutrality prevents any general distinction in the levying of VAT as between lawful and unlawful transactions. The mere fact that conduct amounts to an offence is not sufficient to justify exemption from VAT.
English law is littered with Latin words and phrases. Many of these survive from the middle ages. Latin was the language for official documents and a number of Latin expressions were created by medieval lawyers. In 1730 an Act was passed which abolished legal Latin. Two years later this was repealed and legal Latin has remained with us ever since.
Examples of often-used Latin words and phrases include:
Et cetera: and the rest
Bona fide: good faith
Ex parte: on behalf of
Mens rea: guilty mind
Nemo dat quod non habet: No-one can give what he does not have
Quantum meruit: as much as has been earned
Causa causans: A judicial statement of 1940 made the following points:
Counsel has strenuously contended that the master’s action was novus actus interveniens, which broke the nexus or chain of causation, and reduced the unseaworthiness from causa causans to causa sine qua non. I cannot help deprecating the use of Latin or so-called Latin phrases in this way. They only distract the mind from the true problem, which is to apply the principles of English law to the realities of the case.
Another example is land law, which has its origins in the feudal system. Student land law textbooks continue to quote “bad” Latin maxims, for example:
Cuius est solum eius est usque ad coelum et ad infero
Quicquid plantatur solo, solo cedit
Durante minore aetate.
The use of legal Latin has been the object of sustained judicial criticism. Examples of this in the context of health and safety are the concepts of res ipsa loquitur and volenti non fit injuria.
Res ipsa loquitur (the thing speaks for itself) is a rule of evidence which may lead to liability for negligence without further evidence.
For example, in the case of Fryer v Pearson (2000) F, a gas fitter, was working at P’s house. As he knelt on the floor, the point of a needle buried in a deep-pile carpet pierced his knee. He claimed compensation from P. It was argued on his behalf that res ipsa loquitur applied, that the incident spoke for itself, and that he therefore did not have to prove negligence. His claim was dismissed. The court ruled that this had been a freak, unfortunate accident. Lord Justice May commented that people should stop using maxims or doctrines dressed up in Latin, such as res ipsa loquitur, which are not readily comprehensible to those for whose benefit they are supposed to exist.
Volenti non fit injuria (the consent to the doing of a harmful act will prevent the recovery of compensation for damage resulting from the harmful act) is reputedly a principle which dates back to Aristotle. An example of its application in the context of health and safety is the case of ICI v Shatwell (1965). Two brothers were employed in a quarry as certified shot-firers. They agreed to ignore their employers’ orders and safety regulations when preparing for blasting. This resulted in one of the brothers being injured in an explosion. He claimed compensation from the employers. The House of Lords ruled that volenti non fit injuria applied. The employers were not liable.
This was the high water mark of the application of the doctrine in employment cases. For two centuries, the doctrine was repeatedly applied in relation to injuries suffered by manual workers. The courts ruled that knowledge of a risk in employment inferred consent to that risk. The doctrine is, thankfully, no longer applied in the context of health and safety.
Mens rea and actus reus
In relation to criminal liability (including health and safety offences) crimes are traditionally divided into mens rea (the guilty mind) and actus reus (broadly, the action forbidden by the law). Despite judicial criticism of this use of bad Latin, the phrases continue to be of crucial significance for the criminal law. The general rule is that the prosecution must prove both actus reus and mens rea.
All current criminal law textbooks analyse crimes according to these concepts.
Lord Diplock commented that it would be conducive to clarity of analysis of the ingredients of a crime if we were to avoid bad Latin and instead to think and speak about the conduct of the accused and his state of mind at the time of that conduct, instead of speaking of actus reus and mens rea.
It is always tempting for lawyers with some knowledge of legal Latin to slip an obscure phrase into their documentation with the aim of confusing or intimidating the other side. This practice is now strongly discouraged by some judges. For example, in Williams v J. Walter Thompson Group Ltd (2005), the Court of Appeal stated that the use by an employment tribunal of breaking down a long decision into numbered paragraphs, using small roman numerals running up to lxxiii, was not the most user-friendly method available.
The use of legal Latin can also be seen as a manifestation of intellectual laziness, for example the continued description of charitable legal work as “pro bono”. This is discussed in more detail in Chapter 6 (Mystery).
In my experience, in the council estates of South Wales, little else but the perpetuity rule is the topic of conversation.
In Liswerry in 1951 we liked nothing better than to sit before the fireside and discuss, over a glass of dry sherry and a charcoal biscuit, the implications of novus actus interveniens.
I well remember in Liswerry in 1950 how I used to pop next door to number cxxii to borrow a cup of sweet Sauternes, or how I cheered when Newport County won iii to i.
My father worked the night shift in the aluminium works from x to vi.
Actus non facit reum nisi mens sit rea, my father would cheerily remark when he came off the night shift reeking of sweat and machine oil.
Alienatio rei preferatur juri accrescendi, my grandmother would quip as she bandaged up her varicose ulcer before setting off to work as a cleaner.
An even more extreme example of the use of ancient Classical languages in modern English law is a recently published law book which breaks its paragraphs down into Arabic, Roman and ancient Greek numerals. Everyone understands Arabic numerals, some people understand Roman numerals, but very few can translate ancient Greek except, possibly, those readers who have shared a public school education with the author.