Comments on Cases
| DOI | 10.1177/002201837503900104 |
| Published date | 01 January 1975 |
| Date | 01 January 1975 |
| Subject Matter | Court of Appeal |
Court of
Appeal
Comments
on
Cases
HUSBAND
A
COMPETENT
WITNESS
AGAINST
WIFE
R. v. Noble
AT the termination of the appeal in this case (1974, 1
W.L.R.
894),
the Court of Appeal certified a point of law of general importance,
namely, whether in s.30(3) of the Theft Act 1968 the words "with
reference to that person's wife or husband or to property belonging to
the wifeor husband" limit the preceding words "any offence" to offences
against the person or property of the wife or husband of the accused.
The sub-section enacts that in any proceedings, not brought by the
accused's spouse, charging the accused with an offence with reference
to the spouse's person or property, the spouse shall be a competent
witness. In R. v. Noble, the accused woman was charged with forgery
and with obtaining property by virtue of a forged instrument. The pro-
perty had been obtained, not from her husband, but from a finance
company. All the charges depended on proof of her having forged her
husband's signature. Her defence was that her husband had consented
to her signing his name or that she honestly believed that she had his
authority to do so. Before the jury was empanelled, the trial judge ruled
that the husband was a competent witness for the Crown. He swore
that he had not given his wife authority to use his name and she was
convicted.
The
wife appealed on the ground that her husband's evidence
was inadmissible.
It
was argued on behalf of the appellant that she should have
the benefit of the common law rule forbidding spouses to testify in
the circumstances of this case, since two well-known principles of the
interpretation of statutes should operate to prevent the Theft Act 1968
from being construed in such a way as to deprive the wife of her common
law protection. In the first place, it is
always
presumed that Parliament
does not intend to take away rights by a mere implication; and, secondly,
a penal statute should always be interpreted in favour of the liberty
of the subject. The Court of Appeal expressly disclaimed any intention
of derogating from these principles, but pointed out that the Theft Act
had, in several respects, profoundly altered the law relating to husband
and wife, in the matter of proceedings arising out of alleged theft, (and
indeed, in other proceedings) so that it would not be so surprising if
Parliament had intended to allow a spouse to give evidence on a charge
relating to his or her person or property, even though it was not sug-
13
14
THE
JOURNAL OF CRIMINAL LAW
gested that the charge alleged an offence against his or her person or
property.
That
this was in fact Parliament's intention is rendered the
more likely by virtue of the fact that, whereas some of the changes
in the common law relate only to charges in respect of offences against
the spouse, s.30(3) dealswith offences "with reference to" him or her. This,
as Mocatta J. remarked, is a "somewhat vague phrase"; and it is certain-
ly wider than "against". In the court's opinion the change of phrase
was intentionally used in order to widen the category of proceedings
against a spouse in which the other spouse would be a competent wit-
ness. It was therefore held that the offences charged in the instant
case, namely that the defendant forged her husband's signature to an
application for a loan and to a loan agreement were offences "with
reference to" her husband.
The
signatures if genuine or authorised
would have directly affected the rights and obligations of the husband,
so that in the ordinary usage of language they were "with reference
to" her husband's "property".
APPEAL
AGAINST
A
PROBATION
ORDER
R. v. Marquis
By s.9 of the Criminal Appeal Act 1968, a person is entitled to
appeal to the Court of Appeal against sentence only if he is a "person
...
convicted". In
R.
u. Tucker (1974, 1
W.L.R.
615), the Court of
Appeal decided that where a person has been convicted by a jury and
put on probation he is deemed, for the purposes of appeal, not to have
been convicted at all, so that no appeal against the probation order will
lie to that court. How does it come about, then, that in R. v. Marquis
(1974, 1WL.R. 1087), the Court of Appeal quashed the probation
order made in the Crown Court against the appellant? The answer
is that the appellant in that case claimed that the order had been impro-
perly made, so that it was in law no order, with the result that she
was, therefore, a person convicted by a jury and had a right of appeal
against sentence to the Court of Appeal.
The
defendant, who was aged nineteen, went into a shop where
a friend was in charge of the counter at which lengths of material were
sold. By prior arrangement, she obtained a piece of material and paid
very much less than she should have paid. The seller pleaded guilty
to a charge of theft; the appellant pleaded guilty to charges of theft
and handling and, being found guilty of handling, was placed on pro-
bation for three years.
The
appellant complained that the trial judge had given her the
impression that the only alternative to a probation order was a custodial
sentence. In the Court of Appeal, Lord Widgery C.}, remarked that
such a sentence "far from being the only alternative, was an exceed-
ingly remote alternative", so that she should not have been given the
impression which in fact she was given. The appellant, when asked
COURT OF APPEAL 15
to consent to a probation order, had shown some reluctance to do so
and had finally agreed "only because the court offers an alternative of
a custodial sentence." In the Court of Appeal, it was argued that this
was not an adequate consent within the terms of s.3(5) of the Criminal
Justice Act 1948, which provides that the judge must explain the effect
of the order and of a failure to comply with it and the court shall not
make the order unless the defendant "expresses his willingness to comply
with the requirements thereof." In the opinion of the Court of Appeal
in R. v. Marquis (supra), that means that the probationer "must be
given a fair opportunity to make his choice." If, therefore, he has not
really been given a fair choice, but has only apparently agreed to comply
with the terms of the order, his seeming "agreement" should, if pos-
sible, be reviewed by the courts. As, in the instant case, the appellant
thought the only alternative to probation was a custodial sentence, she
was not, in the opinion of the Court of Appeal, given a fair choice;
she was not given a fair chance to decide for herself whether she was
willing to be bound by the terms of the order or not. Upon this basis,
the court therefore concluded that "the purported probation order was
not a probation order at all" and "accordingly it was a sentence un-
known to law." Since, therefore, she could appeal to the court as a
convicted person, the court could review her sentence. This it did,
substituting a conditional discharge for two years, since she had not
chosen a probation order and since she was a girl who did not need
a probation order.
PROOF OF A
STATUTORY
EXEMPTION
R. v. Edwards
It is stated in Stone's Justices' Manual (1973, 105th Ed., vol.I,
p.89(n)) that "where a person is charged with doing an act except under
and in accordance with the terms of a licence (etc.), the burden of pro-
ving the possession of a licence (etc.) rests on the defendant, and there
is no obligation on the prosecution to establish a prima facie case on
this issue."
The
appellant in R. v. Edwards
(1973,3
WLR.
285) sought
to show that this statement, which is based on s.81 of the Magistrates'
Courts Act 1952, is wrong. That section provides that at the hearing
of an information or complaint in those courts the onus of proving
exceptions shifts to the accused. In R. v. Edwards (supra), the prosecu-
tion submitted that this is merely declaratory of a common law rule,
but the defendant argued that the onus of proof shifts on to the defence
only where the facts constituting the exemption are peculiarly within
the defendant's knowledge. The defendant had been convicted of selling
intoxicating liquor without a justices' licence contrary to s.160(1 )(a)
of the Licensing Act 1964. He was unrepresented at his trial and gave
no evidence (though he made an unsworn statement). He made no
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