Courts of Summary Jurisdiction
| Published date | 01 April 1945 |
| Date | 01 April 1945 |
| DOI | http://doi.org/10.1177/002201834500900201 |
| Subject Matter | Article |
The
Journal
of
Criminal
Law
VOL.
IX.
No.2.
APRIL-JUNE
1945
Courts
of
Summary Jurisdiction
WIFE
RECEIVING
AND
SHELTERING
HUSBAND
WHO
IS
A
DESERTER
R. v. Davis
IS a married woman, when charged with aidjng a
deserter from
the
forces
to
conceal himself, in a privi-
leged position as compared with
any
other member of
the
public, if
the
deserter is
her
husband?
This question is prompted
by
consideration of a case
heard
at
the
West London Metropolitan Magistrates'
Court before Mr.
Paul
Bennett which has aroused con-
siderable public interest.
In
this
case Mrs. E. Davis
pleaded guilty to a charge of aiding asoldier (her husband)
in concealing himself, knowing
that
he was a deserter
contrary
to
section 153
(3)
of
the
Army
Act 1881,
and
was
sentenced'
by
the
learned magistrate to imprisonment for
aperiod of one month.
The
facts were as follows:
The
soldier
had had
compassionate leave
granted
some time in August
and
did
not
return
to
his
unit
at
the
expiry of his leave. There is
little
doubt
that
from
then
until he was finally arrested
by
the
Police he was living with his wife
at
their address.
On one occasion in November
the
Police searched
their
home
but
could find no trace of him,
and
the
wife said she
did
not
know where he was. On
the
day
he was arrested
the
defendant was asked
if
she knew where
her
husband
was
and
she said she
had
not
seen him for months,
but
he
was in fact found hiding in a cupboard in
the
house.
In
this case
the
wife
had
taken
active steps
to
mislead
the
If
81
82
THE
JOURNAL
OF
CRIMINAL
LAW
authorities in
their
search for
the
deserter,
and
we do
not
think
that
in
these circumstances
the
wife could success-
fully raise
any
defence.
We
think
it
is arguable, however,
that
if
the
wife of a
deserter receives
and
shelters him,
but
does
nothing
further
to
assist
him
and
does
nothing
to
impede those who
are
searching for him,
then
such
"bare
reception" is
not
enough
to
warrant
her
conviction.
It
has
long
been
recog-
nised
that
a
married
woman does
not
become
an
accessory
after
the
fact
to
afelony
committed
by
her
husband
by
receiving
him
nor
does she become principal in receiving
her
husband
when
his offence is treason, as
the
law con-
siders
that
she is
bound
to
receive
him
and
not
to
discover
him. (See R. v. Good
(I.e.
and
K.
185)
and
other
author-
ities
noted
in Russell on Crimes
8th
Edn.
p. 133),
and
by
analogy we suggest,
with
some diffidence,
that
apossible
defence on
these
lines
might
be
put
forward
to
acharge of
this
nature.
In
some circumstances
it
is also possible
to
imagine
a wife successfully raising
the
defence allowed
to
her
by
section 47 of
the
Criminal
Justice
Act, 1925, namely,
that
the
offence was
committed
in
the
presence of
and
under
the
coercion of
her
husband. As, however,
it
is no excuse
for
the
wife
that
she
committed.the
offence
by
her
husband's
order
if she
committed
it
in his absence,
it
is unlikely
that
this
defence could often be raised successfully;
but
as a
matter
of
mitigation
it
is obvious
that
a
husband
if
he
so
wishes
can
bring agood deal of pressure
to
bear
upon
a
wife even
if
it
is
not
sufficient to
amount
to
whaf'Is
legally
understood
by
coercion.
The
legislature, however,
have
made
it
difficult for
the
courts
to
deal
with
this offence
leniently, as section 52 of
the
Summary
Jurisdiction
Act,
1879, enacts
that
the
general power of a
court
to impose a
fine instead of imprisonment which is given in Section 4
of
the
same
Act
shall
not
apply
to
any
proceedings
taken
under
any
Act
relating
to
the
regular or auxiliary forces.
In
some cases
the
court
might
well find
that
the
offence
had
been
committed
under
"extenuating
circum-
stances"
and
that
therefore
the
case could
properly
be
dealt
with
under
the
Probation
of Offenders Act,
1907;
but
it
certainly
seems
unfortunate
that
the
courts
at
present
have
no
alternative
between imposing asentence of im-
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