Arbitration By Battle

Dispute resolution throws up its fair share of aggression. Ever wanted to punch the opposing party in an arbitration? This article looks at whether English law could ever give effect to an agreement to settle a dispute through violence – and how it did historically.

Residual rights and wrongs

Following the Norman conquest, English law recognised a right to trial by battle in certain disputes. The details are of historical interest only, but suffice it to say that some criminal defendants could insist on fighting the person who brought the prosecution, and be treated as acquitted if they won. The underlying rationale for trial by battle was that the 'correct' outcome was pre-ordained by God, albeit that He generally favoured whichever litigant was the more athletic, and the better armed and armoured.

A residual right to trial by battle persisted until 1819 in what were known as "appeals". These were not appeals in the modern sense. Rather, they were private prosecutions of a defendant who had already been the subject of a public prosecution for, but acquitted of, a crime. In an "appeal of murder", the deceased's next-of-kin would bring the prosecution. The defendant in such a case could sometimes insist that the trial be by way of a fight between him and the prosecuting relative.

Appeals were rare, and the right to trial by battle would rarely apply. The right was not available when the "appeal" was brought by a woman, a minor, someone over 60 or who was blind or had a sufficient disability. The right was denied to defendants who had attempted to escape from custody, and in cases where the evidence against the accused was thought to be so strong as to 'admit of no denial'.

The girl, the gauntlets and a get-out-of-jail-free card

Both private appeals and trial by battle were abolished in 1819 following the notorious case of Ashford v Thornton. A detailed account of the case and its repercussions can be found in Megarry A New Miscellany-at-Law (2005). Briefly, a young woman called Mary Ashford was seen leaving a dance with Abraham Thornton. The next morning she was found drowned in a pit, with some signs of having been the subject of sexual violence. Thornton was prosecuted for her murder but acquitted, to much public outrage.

Mary's brother, William, brought an appeal of murder against Thornton. In court, Thornton pleaded not guilty, and invoked the obscure right to trial by battle. He then pulled on a pair of leather gauntlets, and threw a pair to Ashford. The court unanimously held that Thornton was within his rights. Lord Ellenborough said:

"... this is not a case that can admit of no denial or proof to the contrary; under these circumstances, however obnoxious I am myself to the trial by battle, it is the mode of trial which we, in our judicial character, are bound to award. We are delivering the law as it is, and not as we wish it to be, and therefore we must pronounce our judgment, that the battle must take place."

Ashford declined Thornton's challenge, and so Thornton was acquitted a second time. Parliament promptly passed an Act (59 Geo III Chapter 46) abolishing both private appeals and trial by battle.

Since Ashford v Thornton, there has been the odd attempt to invoke the right to trial by battle. In 1985 two defendants who were prosecuted in Scotland for armed robbery tried, unsuccessfully, to argue that the 1819 statute did not apply in Scotland. On 16 December 2002 it was reported in the Telegraph that a 60 year old man had sought to invoke a right to trial by battle with "samurai swords, Ghurka knives or heavy hammers" in respect of a £25 fine he had received for a minor motoring offence. To his disappointment, the DVLA declined.

Peers, pistols and prosecutors

It is necessary to say something about the practice of duelling, as distinct from trial by battle. Trial by battle was a public process, sanctioned by law, which operated to determine the legal rights and obligations of the combatants. A participant, provided they acted within the rules, committed no crime if he injured or killed his opponent.

Duelling was a private practice of pre-arranged fights using matching weapons (typically pistols or swords) in accordance with agreed-upon rules. Duelling was highly formalised, and principally practised by the nobility. Unlike trial by battle, duelling did not concern legal rights. Rather, it aimed to resolve questions of 'honour' and avenge perceived sleights.

Duels never seem to have enjoyed any privileged legal status in England. In R v Brown [1994] 1 AC 212 (discussed further below) Lord Mustill refers to a 17th century authority which held it to be well established that someone who killed another in a duel would be guilty of murder. Lord Templeman refers to an 18th Century authority to the effect that "combatants in a duel cannot give consent to one another to take away life". Consent was similarly no defence to a charge of 'maiming' (i.e. injuring someone so as to deprive them of the use of a part of their body which they needed in order to fight). One reason that the victim's consent did not make it lawful to maim or kill him in a duel was that, by maiming or killing him, you deprived the King of the services of an able-bodied citizen for the defence of the realm.

Though this was the law, practice differed. Millingen in his History of Duelling (1841) cites several examples of cases where juries acquitted those charged with murder in the course of duels.

Legal reforms aimed at stamping out the practice by extending liability beyond the duellists to include seconds, supporters, onlookers and doctors who attended to treat the injured. The resulting 'joint enterprise' doctrine is now to be found in section 8 of the Accessories and Abettors Act 1961 (as amended):

"Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender."

If D assists or encourages P to commit a crime, and knows of the essential elements of the offence, D is guilty of the offence in the same way as P. If P and D participate together in one crime, and in the course of it P commits a second crime which D had foreseen P might commit, D is guilty of that second crime in the same way as P.

By way of an aside, the joint enterprise doctrine finds an important modern application in prosecuting gang crime. An example is the murder of Sofyen Belamouadden at Victoria Station in 2010 (see Odegbune & Ors. v R. [2013] EWCA Crim 711). The case has some parallels with historical duels over matters of honour, as it was a murder which took place in the course of a pre-arranged encounter arising out of a feud said to have had its origins in "an incident at a party in relation to a girl".

By the 1840s, public attitudes to duelling were changing. Something of a watershed was the trial of the Earl of Cardigan in 1841 (the Earl was later to lead the notorious charge of the light brigade a the battle of Balaclava). The Earl, a Lieutenant General, allegedly killed a much more junior army officer in a duel, declaring, upon his arrest "I have hit my man". Queen Victoria reportedly said at the time that she hoped the Earl "would get off easily". As an Earl, Cardigan was entitled to be tried by a jury of his peers which, at the time, meant all 120 members of the House of Lords. They unanimously acquitted the Earl on the dubious ground that the indictment alleged that he had murdered one "Harvey Garnett Phipps Tucket" but the prosecution had only adduced evidence to show he had killed someone called "Captain Harvey Tucket", and had given no evidence of the deceased's middle names. The case caused public outrage, it being suggested that the prosecutor had conspired to allow the Earl this loophole. The Times said of the case that "in England there is one law for the rich and another for the poor".

Arms, armour and ADR

The right to trial by battle is no longer available in the criminal context, but it is conceivable that some enterprising parties to a suitable civil dispute might try to use trial by battle as a form of alternative dispute resolution, to save themselves the time and expense of a court case. One can imagine feuding neighbours who thought they were physically well matched and wanted an opportunity to vent some of their enmity while also resolving (say) a boundary dispute without the delay and expense of recourse to the courts.

Under the Arbitration Act 1996 (the "1996 Act"), an "arbitration agreement" is "an agreement to submit to arbitration present or future disputes" (section 6). Provided such agreement is in writing (section 5), it enjoys a special status. Court proceedings brought in respect of a matter which is the subject of an arbitration agreement are required to be stayed (section 9). Subject to certain safeguards, awards rendered pursuant to arbitration agreements can be enforced in the courts (section 66).

Most civil disputes are...