Polimenis Koundouros (LLM)
With Halloween upon us (and criminal law firmly in the mind of many a 1L), I bring you a fascinating legal story—and perhaps a cautionary tale—from the world of the supernatural.
Few will be familiar with s. 365 of the Criminal Code: Pretending to practise witchcraft. Drafted in language that seems most appropriate to inhabitants of 1690s Salem, s. 365 makes it a criminal offence to fraudulently: (a) “pretend” to use “any kind of witchcraft, sorcery, enchantment or conjuration;” (b) tell fortunes for consideration; or (c) “pretend” to use knowledge of the “occult” or a “crafty science” to locate lost or stolen objects. One cannot help but be a tad surprised to find such archaic language in a modern-day statute.
The section’s progenitor was Great Britain’s Witchcraft Act of 1735, which had its most infamous moment some seven decades ago. In 1944, Portsmouth resident and self-proclaimed medium Helen Duncan was put on trial at the Old Bailey in London. The charge? Using or pretending to exercise “a kind of conjuration … that through the agency of the said Helen Duncan spirits of deceased persons should appear to be present in fact in such places as the said Helen Duncan then was in, and that the said spirits were communicating with living persons then and there present.”
It appears that Mrs Duncan had attended a séance in 1941. There, she purportedly summoned the spirit of a sailor who died that November, along with hundreds of others, when a German U-Boat sank the HMS Barham. The problem? The British government, wanting to keep morale up at one of the most difficult periods of the war, did not make the sinking of the HMS Barham public until January 1942. Yet, at her séance in 1941, Mrs Duncan mentioned it by name.
How did Mrs Duncan get herself into a mess like this? And why was she ever put on trial in the middle of the Second World War?
Perhaps those in the military or secret services figured she was a spy who had accessed highly confidential information. Or perhaps they feared what else she might conjure up or predict at a time when D-Day preparations were firmly afoot.
Whatever the reasons, Mrs Duncan was convicted and sentenced to nine months in prison. This caused outrage in many quarters—with 10 Downing Street being the most surprising. Following the trial, Winston Churchill reportedly sent this stern communique to the Home Secretary:
Let me have a report on why the Witchcraft Act, 1735, was used in a modern Court of Justice. What was the cost of this trial to the State, observing that witnesses were brought from Portsmouth and maintained here in this crowded London, for a fortnight, and the Recorder kept busy with all this obsolete tomfoolery, to the detriment of necessary work in the Courts?
Whilst the Witchcraft Act of 1735—with its references to witchcraft, sorcery, conjuration, and enchantment—was repealed in 1951 and replaced by the more sedate Fraudulent Mediums Act 1951 (itself repealed in 2008), its language lives on in the statute books of Canada some three-hundred years later. Obsolete tomfoolery, indeed.
Happy Halloween. And be careful what you do with those Ouija boards.
Sources:
http://www.bbc.co.uk/history/scottishhistory/modern/oddities_modern.shtml
https://archive.org/stream/trialofmrsduncan00duncuoft/trialofmrsduncan00duncuoft_djvu.txt
