Harris v DPP

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeViscount Simon,Lord Oaksey,Lord Morton of Henryton,Lord Tucker
Judgment Date09 Apr 1952
Judgment citation (vLex)[1952] UKHL J0409-1

[1952] UKHL J0409-1

House of Lords

Viscount Simon

Lord Porter

Lord Oaksey

Lord Morton of Henryton

Lord Tucker

Harris
and
Director of Public Prosecutions (on Behalf of Her Majesty)

Upon Report from the Appellate Committee, to whom was referred the Cause Harris against Director of Public Prosecutions, that the Committee had heard Counsel as well on Monday the 10th, as on Tuesday the 11th, Wednesday the 12th and Thursday the 13th, days of March last, upon the Petition and Appeal of Frank Herbert Harris, praying, That the matter of the Order set forth in the First Schedule thereto, namely, an Order of His late Majesty's Court of Criminal Appeal of the 29th of January 1952, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, 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 Counsel having been heard on behalf of the Director of Public Prosecutions (on behalf of Her Majesty), 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 His late Majesty's Court of Criminal Appeal, of the 29th day of January 1952, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the conviction be quashed: And it is further Ordered, That the Appellant do receive the Costs incurred by him in respect of the Appeal to this House, such Costs to be paid out of local funds save such Costs as are being met by the Respondent, the amount of such Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Court of Criminal Appeal to do therein as shall be just and consistent with this Judgment.

Viscount Simon

My Lords,

1

This is an Appeal from a decision of the Court of Criminal Appeal which comes before the House in consequence of a certificate given by the Attorney-General that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that a further Appeal should be brought.

2

The Appellant was a member of the City of Bradford Police Force. He was tried at the Leeds Autumn Assizes last November before Pearson J. on an indictment containing eight counts charging him with office-breaking and larceny on a series of dates in May, June and July, 1951, by breaking into and entering the premises of a Company of fruit and vegetable merchants situated in an enclosed and extensive Bradford market and stealing therefrom various sums of money. In every case the money stolen was only a part of the amount that the thief, whoever he was, might have taken; in every case the same means of access was used; and in every case the theft occurred in a period during part of which the Appellant was on duty in uniform in the course of patrolling the market, and apparently at an hour when most of the gates to the market were closed to the general public. But, on the first seven of these occasions, there was no further evidence to associate the Appellant specifically with the thefts. On the eighth occasion, however, which was between 6 and 7 a.m. on Sunday morning the 22nd July, the Appellant, who was on solitary duty in the market as before, was found to be just outside the premises by two detective officers who had rushed to the spot on hearing, in the quarters where they were secretly waiting, the ringing of a bell actuated, without the knowledge of the Appellant, by the thief's weight when he stepped on the floor of the shop. On this occasion, marked money which had been placed in the till had been abstracted, but it was not found on the Appellant when he was arrested. It had been concealed in a coal-bin, not far away from where he was when first seen. The two detectives were well known to the Appellant and might have been expected to be at once recognised by him, but when they entered the market, one by climbing over a gate and the other by opening it with some difficulty, though they were in the Appellant's view at no great distance, he contended that he had not recognised them at first as members of the Police Force and so had not moved to join them: he said he thought they were market-men entering the area for some innocent purpose. By the time the two detectives had reached the premises he had disappeared from view and a little later came running up to join them. The time which elapsed between their first sight of him and his return was just sufficient to enable him to have reached the coal-bin and come back.

3

Before the Appellant was arraigned and in the absence of the jury, his Counsel asked for the severance of the indictment and urged that the charge contained in the eighth count should be tried first and separately. The learned Judge applied Section 5 (3) of the Indictments Act, 1915 and ruled that there was no good reason for ordering a separate trial on the eighth count and that the case fell within Rule 3 of the First Schedule of the Act, since the charges formed part of a series of offences of the same or a similar character. In so deciding, the learned Judge was rightly exercising his discretion and no valid objection could be taken to his ruling. It was urged that the first seven counts if taken alone would be unsupported by any relevant evidence. But to this the answer was suggested that if a jury took the view that the resemblance between the different thefts was so close that they must be regarded as the work of a single thief, the evidence of what happened on July 22nd might be considered as identifying the criminal on all the counts. The jury, however, returned, as it was entitled to do, a verdict of not guilty on the first seven counts, but found the Appellant guilty on the eighth count.

4

He appealed to the Court of Criminal Appeal against this conviction on various grounds, to one of which reference must be made hereafter. His Appeal was dismissed, but, as already stated, he obtained the certificate of the Attorney-General that the decision of the Court of Criminal Appeal involved a point of law of exceptional public importance, and that a further Appeal should be brought. The Criminal Appeal Act, while conferring this power upon the Attorney-General, does not require that his certificate should indicate what is the point of law which he considers should in the public interest be thus brought for final decision before this House. In the present instance, moreover, the House was without the assistance usually derived from previous written formulation of the arguments and reasons put forward on either side. On the hearing of the Appeal, however, Counsel for the Appellant made it clear that his main contention was that evidence as to the thefts that had occurred on the first seven occasions, when the accused was not shown to be near the shop at the time when they occurred, could not be advanced by the Prosecution or considered by the jury as part of the material to prove the charge on the eighth occasion. The Attorney-General presented the problem arising on the Appeal more widely and in effect invited the House to deal with a series of authorities beginning with Makin v. Attorney-General for New South Wales [1894] A.C. 57, in which limits as to the admissibility of evidence of "similar facts" had been suggested or laid down, and to decide whether the principle enunciated in Makin's case should now be treated as modified or its application regarded as extended.

5

In my opinion, the principle laid down by Lord Herschell in Makin's case remains the proper principle to apply, and I see no reason for modifying it. Makin's case was a decision of the Judicial Committee of the Privy Council, but it was unanimously approved by the House of Lords in R. v. Ball [1911] A.C. 47 at p. 71 and has been constantly relied on ever since. It is, I think, an error to attempt to draw up a closed list of the sort of cases in which the principle operates: such a list only provides instances of its general application, whereas what really matters is the principle itself and its proper application to the particular circumstances of the charge that is being tried. It is the application that may sometimes be difficult, and the particular case now before the House illustrates that difficulty.

6

The principle as laid down by the then Lord Chancellor is as follows:—

"It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused."

7

When Lord Herschell speaks of evidence of other occasions in which the accused was concerned as being admissible to "rebut" a defence which would otherwise be open to the accused, he is not using the vocabulary of civil pleadings and requiring a specific line of defence to be set up before evidence is tendered which would overthrow it. If it were so, instances would arise where magistrates might be urged not to commit for trial, or it might be ruled at the trial, at the end of the prosecution's case, that enough had not been...

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