From time-to-time, news outlets such as Buzzfeed[1] and the Express[2] report on bizarre ancient laws supposedly still in force. Although it is highlighted that these laws are unenforced, I think these articles are unhelpful.
A notable example of this is the supposed ancient law which allows for the killing of a Scotsman in York, provided he is carrying a bow and arrow – unless it is a Sunday. Other versions of this allow one to shoot a Welsh person with a longbow after midnight in Chester – or on a Sunday in the Cathedral Close in Hereford.[3]
Interestingly, a Freedom of Information request to the City of York Council revealed an occurrence of this several centuries ago by men from the Nottingham area, dressed in green, who were enjoying a stag night in York.[4]
I think there is little doubt that a modern court would not permit the common law offence of murder to supersede this law – be it the statute books or not. The reasoning for this is the doctrine known as ‘implied repeal’. In Latin, this is expressed as: Leges Posteriores Priores Contrarias Abrogant which simply means: ‘later laws abrogate prior contrary laws’. In addition to this, in Thorburn v Sunderland City Council[5] Lord Justice Laws explained that some statutes are “constitutional statutes” (à la the United States’ hierarchy of laws) thus are not subject to implied repeal – such as the Parliament Acts 1911 & 1949 and the Human Rights Act 1998. As such, it stands to reason that the universal right to life contained in the Human Rights Act 1998, would trump any ancient laws[6] – not only by virtue of its later date but also via its unique constitutional position.
On this, Jonathan Coad, head of litigation at the London specialist lawyers Swan Turton said:
“Whatever people in York may think about Scotsmen with bows and arrows, they would have a hard time avoiding several centuries of homicide acts.”[7]
As well, the Law Commission clarified: “it is illegal to shoot a Welsh or Scottish (or any other) person regardless of the day, location or choice of weaponry”.[8] Interestingly, in 2019 a man was sentenced to 31 years for killing another man with a crossbow[9] – perhaps because this was in Anglesey! As well, in 2004 Germany saw as many as eight crossbow murders.[10] Perhaps the unconventionality of the murder weapon is what has led this legal myth to subsist.
In essence, I think the doctrine of implied repeal is extremely beneficial to this issue. Parliamentary time is already limited – one MP admitted going to vote on legislation without having read more than the cover of the Act.[11] As well, legislation.gov lists some 127,990 pieces of primary legislation still in force, enacted between 1267 and 2020.[12] As such, implied repeal enables Parliament to better use their time – not wasting it repealing ancient and unenforced laws.
References
[1] https://www.buzzfeed.com/sam_cleal/weird-british-laws-i-cant-believe-exist
[2] https://www.express.co.uk/life-style/life/650388/11-bizarre-British-laws-have-not-been-repealed-illegal-to-drink-in-pub-citybaseapartments
[3] https://www.bbc.co.uk/news/uk-england-35376020
[4] https://www.whatdotheyknow.com/request/in_york_it_is_perfectly_legal_to
[5] Thoburn v Sunderland City Council [2002] 3 WLR 247, [2002] EWHC 195 (Admin), [2003] QB 151
[6] https://www.bbc.co.uk/news/uk-england-35376020
[7] https://www.theguardian.com/politics/2007/nov/07/uk.queensspeech20072
[8] https://www.bbc.co.uk/news/uk-england-35376020
[9] https://www.bbc.co.uk/news/uk-wales-51675341
[10] https://www.researchgate.net/publication/8361747_Crossbow_homicides
[11] https://www.theguardian.com/commentisfree/2015/may/27/tragedy-mps-too-busy-constituency-work
[12] https://www.legislation.gov.uk/primary+secondary