Department of Public Prosecutions v Shannon

JurisdictionEngland & Wales
JudgeLord Reid,Lord Morris of Borth-y-Gest,Viscount Dilhorne,Lord Simon of Glaisdale,Lord Salmon
Judgment Date19 June 1974
Judgment citation (vLex)[1974] UKHL J0619-1
Date19 June 1974
CourtHouse of Lords
Director of Public Prosecutions
and
Shannon
(on Appeal from the Court of Appeal (Criminal Division))

[1974] UKHL J0619-1

Lord Reid

Lord Morris of Borth-y-Gest

Viscount Dilhorne

Lord Simon of Glaisdale

Lord Salmon

House of Lords

After hearing Counsel for the Appellant, as well on Thursday the 28th day of February last, as on Monday the 4th day of March last, upon the Petition and Appeal of the Director of Public Prosecutions praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal (Criminal Division) of the 21st of December 1973, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; and whereas by an Order of this House of the 12th day of March last, it was Ordered, That the Cause Director of Public Prosecutions against Shannon (on Appeal from the Court of Appeal (Criminal Division)) be referred to an Appellate Committee; and whereas the Committee had heard Counsel, as well on Wednesday the 13th, as on Thursday the 14th, days of March last; and Counsel having been heard on behalf of David Charles Shannon, the Respondent to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division), of the 21st day of December 1973, complained of in the said Appeal be, and the same is hereby, Reversed, and that the conviction on count 22, namely conspiracy dishonestly to handle stolen goods, imposed by Mr. Recorder de Piro Q.C., at Warwick Crown Court on the 23rd day of March 1973, thereby Quashed, be, and the same is hereby, Restored: And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Warwick Crown Court to do therein as shall be just and consistent with this Judgment.

Lord Reid

My Lords,

1

I have had an opportunity of reading the speech of my noble and learned friend, Lord Morris of Borth-y-Gest. I agree with it. I would allow the appeal.

Lord Morris of Borth-y-Gest

My Lords,

2

The law of conspiracy has been fertile in producing many problems for lawyers. The question raised in this appeal is whether it should yield an apparent bonus for the Respondent, Shannon. On the 23rd March, 1973, he pleaded guilty in the Crown Court at Warwick to a count of an indictment which charged him and a man named Tracey with having conspired together dishonestly to handle stolen goods. There has been no suggestion that he did not appreciate and understand what he was doing when he pleaded guilty. He was represented by Counsel. Counsel made a plea in mitigation covering both the conspiracy count and two other counts which were of handling stolen goods and to which counts Shannon also pleaded guilty. Sentences were passed on the 23rd March.

3

Tracey pleaded not guilty to the charge of conspiring with Shannon and not guilty to a count charging him separately with handling stolen goods. Tracey was not tried on that date (the 23rd March). He came up for trial at Warwick Crown Court on the 26th and 27th March. By leave, the count against him of handling stolen goods was amended so that it became divided into two counts. The trial proceeded on those two counts, the trial on the charges against him being severed so that the outstanding charge against him on the conspiracy count was left to be later separately tried. At that trial on the two counts the jury disagreed.

4

The next step was that Tracey was re-tried on the two counts of handling stolen goods. That took place at the Crown Court in Coventry. Incidentally the presiding Recorder at Coventry was not the Recorder who had presided at Warwick on the 26th and 27th March who, in turn, was not the Recorder who had presided at Warwick on the 23rd March. The new trial took place on the 3rd and 4th April. The severed conspiracy count against Tracey was also sent to the Coventry court though at first Tracey was tried (by way of re-trial) only on the two counts of handling stolen goods. The result was that the jury acquitted Tracey on those counts.

5

The next step was that the Prosecution decided to offer no evidence against Tracey on the outstanding conspiracy count. Being invited to do so, the Recorder entered a verdict of not guilty. Section 17 of the Criminal Justice Act, 1967, became operative. That section provides as follows:

"Where a defendant arraigned on an indictment or inquisition pleads not guilty and the prosecutor proposes to offer no evidence against him, the court before which the defendant is arraigned may, if it thinks fit, order that a verdict of not guilty shall be recorded without the defendant being given in charge to a jury, and the verdict shall have the same effect as if the defendant had been tried and acquitted on the verdict of a jury."

6

The next step was that Shannon, having heard of what had happened in Tracey's case, applied for leave to appeal to the Court of Appeal firstly in regard to his conviction on the conspiracy count and secondly in regard to his sentences. We are only concerned with the first of these. We have not had to consider the facts or the extent of the Respondent's involvement. Leave was asked for on the ground and contention that though there had been a plea of guilty by Shannon the consequence of Tracey's acquittal (the count having named as conspirators only Shannon and Tracey) was that the conviction of Shannon could not stand.

7

In the result the Court of Appeal held, for the reasons given in a most helpful and illuminating judgment in which the authorities are carefully marshalled and considered, that Shannon's appeal against conviction succeeded.

8

The Court felt "reluctantly" obliged to allow the appeal but gave leave to appeal to this House and certified the following point of law of general public importance:—

"If two persons alone (that is to say with no other persons named or unnamed) are indicted for conspiracy together and the first pleads guilty but the second pleads not guilty and is subsequently tried and acquitted, must the conviction of the first upon his own confession thereupon be quashed?"

9

So the question arises whether if A and B (but no others) are charged with conspiracy and if A, with full intention, pleads guilty and if B pleads not guilty and if B's trial is postponed, but, taking place at some subsequent time, results in his acquittal, the law requires that the conviction of A (on his own confession) must be set aside. If it must, the law will be producing a strange result. No one could know better than A whether he did or did not agree with B to do something wrongful and if, fully understanding what he was doing, and having skilled advice to guide or assist him, he acknowledged by way of confession to the court that he had so agreed, the law might seem to be artificial and contrarywise which required that because the charge against B failed A must be held to be not guilty when he himself knew and had admitted that he was guilty.

10

Before examining the matter more deeply the question arises whether, in the circumstances of this case, the Court of Appeal was possessed of statutory power to set aside the conviction of the Respondent. I do not find it necessary to set out the legislative history which has culminated in the endowment of the Court of Appeal (Criminal Division) with its statutory powers. This is because, irrespective of question as to jurisdiction to entertain an appeal, the powers the Court on the hearing of an appeal are now to be found in and are contained in section 2 of the Criminal Appeal Act, 1968. For an appreciation of many of the older authorities it has to be remembered that writs of error (abolished by the Criminal Appeal Act, 1907, section 20(1)) only enabled errors to be corrected if they were errors on the record. Under the Crown Cases Act, 1848 (now repealed), the Court itself could reserve and state a case on a point of law for the consideration of the Court for the consideration of Crown Cases Reserved. The jurisdiction of that Court in relation to such questions of law became vested in the Court of Criminal Appeal (see Criminal Appeal Act, 1907, section 20(4)). After the establishment of that Court the determination of appeals in ordinary cases was governed by section 4 of the Act of 1907. On the transfer by the Criminal Appeal Act, 1966, of the jurisdiction of the Court of Criminal Appeal to the Court of Appeal section 4 of the 1966 Act amended the provisions of section 4 of the 1907 Act. It is to be observed that whereas in section 4 of the 1907 Act one available ground for allowing an appeal was "that on any ground there was a miscarriage of justice" one amendment made in 1966 was that for those words there was a substitution of the words "there was a material irregularity in the course of the trial". Now the provisions of section 2 of the 1968 Act are as follows:—

"2.—(1) Except as provided by this Act, the Court of Appeal shall allow an appeal against conviction if they think—

  • ( a) that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

  • ( b) that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law; or

  • ( c) that there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal:

Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the...

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