Incidentally, two Supreme Court Justices have now called for the Law Commission to re-examine the law on illegality: Lord Mance in the Edinburgh Law Review and Lord Sumption in his article in the Restitution Law Review. It will be difficult, I suggest, for these calls to be ignored, despite the Law Commission’s relatively recent marathon investigation of the doctrine of illegality.

I think that Rob is right to condemn the “structured discretion” suggested by the Law Commission. It is a dead end. It is no better a test than many of the other tests that have been proposed, including the reliance test, the “inextricably linked” test, etc. These tests all appeal to matters that ought to be irrelevant and by which the courts should not permit themselves to be distracted.

In my view, the doctrine of illegality can in the UK function both as a denial of an element of the cause of action and as a defence. This is not to defend at all the current law (everyone knows it is a shambles). It is just an observation on what happens according to the rules with which we have been saddled in the UK.

The outcome in Hounga is correct, but the reasoning in the case is indeed unsatisfactory. I do think, like Rob, that McLachlin J’s opinion in Hall v Hebert wasn’t understood properly.

James

From: Robert Stevens [mailto:robert.stevens@law.ox.ac.uk]
Sent: 31 July 2014 14:56
To: Hector MacQueen
Cc: James Lee; Neil Foster; obligations@uwo.ca
Subject: Re: Two Cases on the Illegality Defence

As someone who does not approve of the 'structured discretion' approach I am quite glad Lord Mance was not on the panel. I cannot imagine there is much enthusiasm for asking the LC to review the area again.

I don't think the majority are correct to view illegality as a defence, although I know that is a common view. If a defendant has to rely on his own illegal conduct in making out his defence the defence will fail by reason of the same principle. A judge should rule out a claim based on illegality regardless of whether a defendant wishes to raise the issue. Criminal conspirators don't get to use the courts as a forum for the resolution of their disputes, whatever the defendant may desire.

Nor do I think the majority are correct, as they seem to imply, that the operation of the principle of illegality varies from one area of law to another.

Nor do I think the majority are correct to think that the principle of integrity spelled out by McLachlin CJ in Hall v Homan involves a kind of free form weighing up of the various incommensurable policies that may or may not underlie the criminal legislation. Should the result be different if we could point to some evidence of illegal immigrants being deterred on the basis of UK employers' freedom to discriminate against them with impunity?

The result is right though.
R

On 31-Jul-2014 11:20 am, Hector MacQueen <hector.macqueen@ed.ac.uk> wrote:

Yes, indeed, both very interesting. I am intrigued by Lord Hughes'
comment in Hounga - "A case in which, as I understand it, all the
members of this court are agreed on the outcome of the appeal is not a
suitable vehicle to essay a general synthesis such as has been so
difficult to formulate" (para 54). Would a case in which the members
of the court disagreed as to the outcome be more suitable?

Possibly it is unfortunate that Lord Mance wasn't on the court this
time round. His tentative view as stated recently in (2014) 18
Edinburgh LR 175-192 (from which Lord Wilson quotes en passant at para
37) is that the court should be equipped with a structured discretion
in illegality cases, and that the Law Commissions should return to the
topic. It's not however on the English Commission's recently
announced Twelfth Programme of Law Reform
(http://lawcommission.justice.gov.uk/areas/12th-programme.htm). The
Scottish Commission might manage to do something, though, under the
head of its current Contract Law review
(http://www.scotlawcom.gov.uk/law-reform-projects/contract-law-in-light-of-the-draft-common-frame-of-reference-dcf/). I note that Gloster LJ in Patel seems to head down the structured discretion approach more overtly than her
colleagues.

Hector

--
Hector L MacQueen
Professor of Private Law
Edinburgh Law School
University of Edinburgh
Edinburgh EH8 9YL
UK

SSRN http://ssrn.com/author=463210

Currently working at the Scottish Law Commission tel: (UK-0)131-662-5222

Quoting Neil Foster <neil.foster@newcastle.edu.au> on Wed, 30 Jul 2014
23:25:46 +0000:

> Dear Jamie (et al)
> Thanks, very interesting cases. It is interesting to speculate as to
> why the fairly recent High Court of Australia decision in Miller v
> Miller [2011] HCA 9 (7 April 2011) was not mentioned (I notice that
> an older HCA decision was cited in Patel). Perhaps the facts of
> Miller (a traffic accident) seem too far away from the worlds of
> high finance or racial discrimination. But the principles adopted by
> the HCA resonate with those discussed in both these cases- the
> desire for "coherence" in legal obligations, and the fact that where
> someone withdraws from an illegal transaction or enterprise at the
> last minute they may avoid the application of the illegality
> doctrine. In Miller the girl who started out as a co-offender with
> her uncle in the theft of the car which crashed, was able to receive
> damages because not long before the incident she clearly asked to be
> let out of the car, and the majority of the court held that at that
> point she had withdrawn from the illegal enterprise.
> Regards
> Neil
>
> NEIL FOSTER
> Associate Professor
> Newcastle Law School
> Faculty of Business and Law
> MC177 McMullin Building
>
> T: +61 2 49217430
> E: neil.foster@newcastle.edu.au<mailto:Firstname.Lastname@newcastle.edu.au>
>
> Further details: http://www.newcastle.edu.au/profile/neil-foster
> My publications: http://works.bepress.com/neil_foster/ ,
> http://ssrn.com/author=504828
>
>
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> Callaghan NSW 2308
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>
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>
>
>
> From: James Lee <j.s.f.lee@bham.ac.uk<mailto:j.s.f.lee@bham.ac.uk>>
> Date: Wednesday, 30 July 2014 7:28 pm
> To: "obligations@uwo.ca<mailto:obligations@uwo.ca>"
> <obligations@uwo.ca<mailto:obligations@uwo.ca>>
> Subject: Two Cases on the Illegality Defence
>
> Dear All,
>
> As the adage goes, one waits for ages for a case on the operation of
> the illegality defence in English Law, and then two come along at
> once.
>
> So yesterday the Court of Appeal decided Patel v Mirza [2014] EWCA
> Civ 1047 http://www.bailii.org/ew/cases/EWCA/Civ/2014/1047.html on
> locus poenitentiae, offering observations on Tinsley v Milligan.
> But that case has been somewhat gazumped by today's Supreme Court
> decision in Hounga v Allen [2014] UKSC 47 which concerns race
> discrimination and human trafficking
> http://supremecourt.uk/decided-cases/docs/UKSC_2012_0188_Judgment.pdf, with
> important reflections on how public policy influences the defence.
> Hounga contains the most significant comments on the defence at the
> highest English level since 2009 (when Gray and Moore Stephens were
> decided).
>
> Best wishes,
> James
>
>
> --
> James Lee
> Senior Lecturer and Director of Admissions
> Birmingham Law School, room 235
> University of Birmingham
> Edgbaston
> Birmingham
> B15 2TT, United Kingdom
>
> Tel: +44 (0)121 414 3629
> E-mail:
> j.s.f.lee@bham.ac.uk<mailto:j.s.f.lee@bham.ac.uk><mailto:j.s.f.lee@bham.ac.uk>
>
>
> Web: http://www.birmingham.ac.uk/staff/profiles/law/lee-james.aspx
>
> Sent from my iPad
>
>

--
The University of Edinburgh is a charitable body, registered in
Scotland, with registration number SC005336.

From:	James Goudkamp <james.goudkamp@law.ox.ac.uk>
To:	Robert Stevens <robert.stevens@law.ox.ac.uk>
	Hector MacQueen <hector.macqueen@ed.ac.uk>
CC:	James Lee <j.s.f.lee@bham.ac.uk>
	Neil Foster <neil.foster@newcastle.edu.au>
	obligations@uwo.ca
Date:	31/07/2014 14:44:35 UTC
Subject:	RE: Two Cases on the Illegality Defence