Mills v Cooper: QBD 1967

Two sets of criminal proceedings were brought against the defendant for offences under section 127 of the Highways Act 1959 namely that of being a gypsy and, without lawful excuse, camping on a highway. The first proceedings were brought in respect of 22nd December 1965. Those proceedings were dismissed in February 1966 on the ground that the defendant was not a gypsy on that date, being not of the Romany race. Ten weeks later, in the second proceedings, a similar allegation was made in respect of 13th March 1966. The defendant argued that there was an issue estoppel as to his status; he was not a gypsy. The court was asked as to the meaning of the word ‘gypsy’ in the 1959 Act, which made it an offence for a gypsy to pitch a booth or to camp on a highway.
Held: There was no issue estoppel. Once it was recognised that being a gypsy was not an unalterable status but depended on the way of life which the person was leading at a particular time, it was clear that the incorrectness of the assertion as to the defendant’s status made in the first proceedings was not inconsistent with the correctness of the same assertion made in the second proceedings. The word ‘gypsy’ could not bear the dictionary meaning of a member of the Romany race, but should be given its colloquial or popular meaning of a person leading a nomadic life with no, or no fixed employment and with no fixed abode. ‘Looked at in that way, a man might well not be a gipsy on one date and yet be one on a later date’ A gipsy is a person without fixed abode who leads a nomadic life, dwelling in tents or other shelters, or in caravans or other vehicles. If that meaning is adopted, it follows that being a gipsy is not an unalterable status. It cannot be said, ‘once a gipsy always a gipsy’. By changing his way of life a modern Borrow may be a gipsy at one time and not a gipsy at another.
Magistrates, like any court, have a right in their discretion to decline to hear proceedings on the ground that they were oppressive and an abuse of the process of the court.
Lord Diplock said: ‘[The] doctrine [of estoppel] . . so far as it affects civil proceedings, may be stated thus: a party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence . . in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such civil proceedings to be incorrect.’


Diplock LJ, Lord Parker CJ, Ashworth J


[1967] 2 QB 459


Highways Act 1959 127


England and Wales

Cited by:

CitedWrexham County Borough v The National Assembly of Wales, Michael Berry, Florence Berry CA 19-Jun-2003
A traditional gypsy family had settled because of ill health, and sought to establish a caravan site. The authority claimed they were no longer to be treated as Gypsy and having the entitlement under the Act.
Held: The Act defined ‘Gypsies’ as . .
AppliedArnold v National Westminster Bank Plc HL 1991
Tenants invited the court to construe the terms of a rent review provision in the sub-underlease under which they held premises. The provision had been construed in a sense adverse to them in earlier proceedings before Walton J, but they had been . .
CitedCarphone Warehouse UK Ltd v Cyrus Malekout CA 14-Jun-2006
The tenant had a Rent Act tenancy. The landlord failed to repair the premises, and he was unable to occupy them. The present appellant landlord took an assignment of the freehold, and sought possession for arrears of rent. The first proceedings were . .
CitedRegina v Horseferry Road Magistrates’ Court, ex Parte Bennett (No 1) HL 24-Jun-1993
The defendant had been brought to the UK in a manner which was in breach of extradition law. He had, in effect, been kidnapped by the authorities.
Held: The High Court may look at how an accused person was brought within the jurisdiction when . .
CitedLevey, Regina v CACD 27-Jul-2006
The defendant appealed against his conviction of manslaughter of his baby son. He said that a family court had previously investigated the same allegations and had explicitly found itself unable to say which of himself and the mother were . .
CitedRegina v Belmarsh Magistrates’ Court ex parte Fiona Watts Admn 8-Feb-1999
The defendant sought to have dismissed as an abuse of proces charges against her that as an officer of Customs and Excise prosecuting the now private prosecutor, she had committed various offences.
Held: The magistrate was vested with . .
CitedSpecialist Group International Ltd v Deakin and Another CA 23-May-2001
Law upon res judicata – action estoppel and issue estoppel and the underlying policy interest whereby there is finality in litigation and litigants are not vexed twice on the same matter.
(May LJ) ‘the authorities taken as a whole tend to . .
Lists of cited by and citing cases may be incomplete.

Crime, Road Traffic, Criminal Practice

Updated: 12 April 2022; Ref: scu.184233