Courts of Appeal
| Date | 01 January 1974 |
| DOI | 10.1177/002201837403800104 |
| Published date | 01 January 1974 |
| Subject Matter | Article |
Court of
Appeal
CONSPIRACY
TO
PREVENT
THE
BURIAL
OF
A
CORPSE
R. v. Hunter
IN
R.
v. Hunter
(1973,3
W.L.R.
374),
the three appellants' con-
victions arose
out
of the death of a girl.
The
prosecution alleged
that
they
had
gone with the girl into a field to have sexual inter-
course
with
her, using such force as was necessary,
and
had
there
choked
her
to death, taken money
and
trinkets from
her
body
and
had
then taken it into another field
and
had
buried
it
under
a pile
of paving stones where it remained hidden for
four
months.
The
appellants were convicted of manslaughter, theft
and
conspiracy
to prevent the burial of a corpse.
The
success of their appeals
against conviction on the first two charges calls for no comment,
but
the
third
count
raised a legal problem.
From
their conviction
on this count, the appellants appealed on
the
ground
that
the
offence of preventing
the
burial
of a corpse was unknown to English
law
except where there was a
duty
to bury.
They
also
argued
that
the object of their conspiracy was
not
to prevent burial,
but
merely
to conceal
the
corpse.
It
is stated in Russell on Crime
(12th
Ed., 1964, p.1420)
that
to prevent the burial of a dead body is an indictable misdemeanour.
R. v. Young (unreported,
but
referred to in R. v. Lynn (1788, 2
Term Rep.
733))
is cited.
In
R. v. Hunter (supra), the Court of
Appeal stated,
"We
see no reason to suppose
that
Russell is wrong
in concluding
that
this is still an offence."
The
appellant argued
that, as the defendant charged in R. v. Young was the master of
a workhouse, with a duty to bury the corpse,
that
case shows
that
the offence is one which can be committed only by a person who is
under such a duty. But in R. v. Hunter, the Court of Appeal con-
cluded
that
"if
it is a crime for the person responsible for burial to
prevent it, there is no reason for regarding the
act
of a stranger in
preventing
burial
as
any
less reprehensible." In the court's opinion,
an offence is committed "if a decent burial is prevented without
lawful excuse."
Thus,
cremation now authorised by
the
Cremation
Act, 1902 would constitute such "lawful excuse."
On
the facts of
Hunter's case, the court refused to interfere with the conviction, for,
since the defendants agreed to conceal the body
and
the conceal-
ment in fact prevented burial, the offence was made out, even
24
COURT
OF
APPEAL
25
though the prevention of burial was not the object of the appellants'
agreement.
The
court
further concluded
that
three years' imprison-
ment was not wrong in principle.
INADMISSIBILITY
OF
WIFE'S
EVIDENCE
R. v. Deacon
The
accused, in R. v. Deacon (1973, 1W.L.R.
696),
shot
and
killed his brother-in-law, in the presence of his wife.
In
a
struggle which then ensued, the
gun
went off a second time,
injuring no-one,
but
the accused re-loaded it
and
shot his wife in
the hand. He was charged with the
murder
of his brother-in-law
in count 1 of the indictment
and
with attempting to
murder
his
wife in
count
2.
He
was convicted of
murder
and
the
jury
were discharged from giving a verdict on count 2. At the trial,
the defence relied on provocation, diminished responsibility
and
accident, it being conceded by counsel
that
the verdict on count 1
must be
at
least manslaughter. At no time did the defence make
an
application to have the offences tried separately. Neither did
the defence ask
that
the wife should give evidence
nor
object to
her
giving evidence in relation to the charge of
murder
in
count
1.
The
defendant nevertheless appealed against his conviction on
two
grounds:
(i)
that
the indictment should have been severed
and
the two counts tried separately,
and
(ii)
that
the wife's
evidence
had
been wrongly admitted in relation to count 1, as
she was not a competent witness for the Crown.
It
was conceded in the
Court
of Appeal
that,
although the
wife was a competent witness on count 2
(the
attempted
murder
of herself), she was not competent for the Crown on
count
1
except on the application of the accused.
The
court
held
that
mere silence on the
part
of the defence, as to
the
wife's evidence,
could
not
be construed as an application by the defence for the
wife to give
that
evidence, so
that
it was inadmissible on
count
1.
The
question thus arose whether the
court
should apply
the
proviso
to s.2 of
the
Criminal Appeal Act, 1968, on the footing
that
no
miscarriage of justice
had
occurred by reason of the fact
that
the
two counts
had
been tried together. Although there was consider-
able evidence,
apart
from the wife's testimony, to support the
charge of
murder,
the
court
concluded
that
the wife's direct
evidence of
what
she
had
seen must have been of such over-
whelming importance in the eyes of the
jury
that
it was impossible
to say
what
the
jury
might have done,
had
that
eye-witness
testimony
not
been available.
26
THE
JOURNAL
OF
CRIMINAL
LAW
The
court
expressed no doubt, however,
but
that
ajury,
properly instructed, even in the absence of the wife's evidence,
would
at
least have returned averdict of manslaughter. Indeed,
the accused's own admissions showed
that
he
had
been handling
the weapon with extreme recklessness.
But
the
court
concluded
that
it
had
no authority to substitute averdict of manslaughter
for
that
of
murder,
for
"there
is no power in section 2 of
the
Criminal Appeal Act, 1968 to substitute averdict for a different
offence on the footing
that
no miscarriage of justice would have
occurred if the
jury
had
convicted of
that
offence"
(p.699E).
The
power to substitute averdict for a different offence is contained
in s.3(1) of the Act.
That
sub-section makes it clear
that
a
substituted verdict must be based on the findings of
the
jury,
which established whatever facts were necessary to support the
alternative offence which it was proposed to substitute.
In
the
instant case, it could
not
be said
that
"on
the findings of
the
jury
it appears to the
Court
of Appeal
that
the
jury
must have
been satisfied of facts which prove him guilty of
the
other
offence,"
for the jury's entire findings were coloured by the wife's evidence.
It
could not be said
that
the jury's findings of fact supported a
verdit of manslaughter except on the footing
that
they received
support from the evidence of the wife.
The
court
was thus
"reluctantly compelled" to the view
that
it
had
no power to
substitute averdict of manslaughter
and
therefore quashed the
conviction.
The
result amply supports the court's statement
that
"it
may
be
that
there is a lacuna in
the
Act
and
that
this
court
ought
to be given power to substitute averdict on more general
grounds when it is satisfied
that
the alternative verdict would have
been inevitable
had
the case been properly presented to the
jury"
(p.700B).
TAKING
A
VEHICLE
WITHOUT
AUTHORITY
R. v. Bogacki
Section 12(1) of the
Theft
Act, 1968 provides
that
a person
shall be guilty of an offence if, without having the consent of the
owner
or
other lawful authority, he takes any conveyance for his
own or another's use.
The
short point raised by the appeal in
R. v. Bogacki (1973, 2W.L.R. 937) was whether a conveyance
can
be
"taken",
within the meaning of the sub-section, in the
absence of any movement of the vehicle.
The
appellants boarded
a bus in a garage late
at
night
and
one of them attempted to
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