Haughton v Smith

JurisdictionEngland & Wales
JudgeLord Chancellor,Lord Reid,Lord Morris of Borth-Y-Gest,Viscount Dilhorne,Lord Salmon
Judgment Date21 November 1973
Judgment citation (vLex)[1973] UKHL J1121-1
CourtHouse of Lords
Docket NumberParliamentary Archives, HL/PO/JU/4/3/1243
Date21 November 1973
Haughton
and
Smith

[1973] UKHL J1121-1

Lord Chancellor

Lord Reid

Lord Morris of Borth-Y-Gest

Viscount Dilhorne

Lord Salmon

Parliamentary Archives, HL/PO/JU/4/3/1243

HOUSE OF LORDS

Lord Chancellor
1

Lord Hailsham of Saint Marylebone

2

my lords:

3

The Respondent to this appeal was convicted at the Liverpool Crown Court on the 28th September. 1972, of attempting to handle stolen goods exactly twelve months previously. He was sentenced to twelve months' imprisonment and an earlier suspended sentence was activated. The Court of Appeal Criminal Division quashed his conviction, certified that a question of law of general public interest was involved and gave leave to appeal. Notwithstanding the quashing of his conviction, his continued detention was directed under s. 37(2) of the Criminal Appeal Act, 1968. We were told during argument that the result of the proceedings was of no more than academic interest to the Respondent himself since he is already serving a sentence, or sentences, which would more than cover the terms imposed in the present case. This enabled counsel to deal with the questions of law involved in an admirable atmosphere of detachment combined with a commendable zeal to extend the frontiers of legal knowledge.

4

The facts on which the present proceedings were founded are well summarised in the judgment of the Lord Chief Justice in the Court of Appeal. In the autumn of 1971, a considerable quantity of corned beef was stolen from a well-known firm in Liverpool. Some days later, a hopelessly overloaded van was noticed by the police travelling south. They stopped the van and found the corned beef inside. The van was so badly overloaded, that part of the cargo had to be removed, but it was then allowed to go on with the remainder of the load and with two policemen concealed inside, and one disguised policeman beside the driver. The object was to catch the London receivers by using the van, and its load, as a decoy. After a rather adventurous journey, the van arrived by a circuitous route at a rendezvous on the Ml at the Scratchwood Service Area in Hertfordshire, where it was met, or joined, by the Respondent and at least one other, evidently by arrangement, and then driven on to London under the Respondent's direction, but with the police still on board. The Respondent played a prominent part in assisting in the disposal of the van and its load and thus handled the goods within the meaning of the Theft Act, 1968, s. 22. Finally the trap was sprung and various members of the conspiracy arrested. Other members of the gang were tried and dealt with separately. But the Respondent was tried later and dealt with in the present proceedings after the first trial had been disposed of.

5

There were two counts in the indictment. The second was a charge of conspiracy with persons unknown to handle stolen goods. This, in the light of the jury's subsequent verdict, could hardly have failed. For reasons I am quite unable to understand, the prosecution did not proceed with this charge and the defence prudently secured a directed verdict of not guilty. The first charge was one of attempting to handle the stolen goods. But in this, too, the prosecution do not seem to have thought things through. The completed offence of handling was not charged since the prosecution were of the opinion that, by the time the goods were handled, they were no longer to be treated as stolen, because in the view taken, they were restored to lawful custody within the meaning of s. 24(3) of the Theft Act, 1968, after the police had prepared the trap. Whether this was in truth so, is, I think, open to question, but it is not possible to go back on this concession now, or even to enquire how wise it was to have made it. But, if the goods were in truth restored to lawful custody, as the prosecution supposed and conceded, one would have thought that a count for theft or attempted theft of them would have been appropriate, and, like the charge of conspiracy, ought properly to have succeeded. But, as it was not contained in the indictment, I do not think it would be open to this House to substitute a verdict of theft or attempted theft under the combined provisions of the Criminal Appeal Act, 1968, s. 3 and the Criminal Law Act, 1967, c. 6(3) and (4). See, for instance, Woods [1969] 1 Q.B. 447; Springfield [1969] 53 Cr. App. R. 608, which I am inclined to think establish that an alternative verdict under s. 6(3) would not have been open to the jury, without a separate count in the indictment. At the trial, the respondent told a story which was not believed by the jury, but his counsel took advantage of the position in which the prosecution had placed itself to submit to the Court the formidable argument that a man could hardly be convicted of attempting to handle stolen goods when the goods were not stolen at the time of the attempted handling. This submission failed before the trial judge, but it succeeded before the Court of Appeal and, in my opinion, it succeeds here too.

6

I was at first inclined to think that s. 22 of the Theft Act, 1968, was drafted in such a way as to permit the construction that to be stolen for the purpose of s. 22 (1) it was sufficient that the goods had been stolen without continuing to be stolen at the time of the handling, provided, of course, that the accused believed them at the time of the handling to be stolen. I thought that the expression "believed" in the subsection aided the view that it could cover a state of facts where the defendant believed the goods to be stolen when they were not in fact still stolen at that moment of time. But, on consideration, I am sure that this would be a false construction, and that the expression "believed" was inserted to guard against acquittals which had taken place under the former Larceny Act when it was necessary to prove knowledge that the goods were stolen and belief was not enough. If I were not already certain that this was the true meaning of s. 22 (1), the provisions of s. 24, and, in particular, s. 24(3), would, I think, clinch the matter. In my view, it is plain that, in order to constitute the offence of handling, the goods specified in the particulars of offence must not only be believed to be stolen, but actually continue to be stolen goods at the moment of handling. Once this is accepted as the true construction of the section, I do not think that it is possible to convert a completed act of handling, which is not itself criminal because it was not the handling of stolen goods, into a criminal act by the simple device of alleging that it was an attempt to handle stolen goods on the ground that at the time of handling the accused falsely believed them still to be stolen. In my opinion, this would be for the courts to manufacture a new criminal offence not authorised by the legislature.

7

This would be enough to decide the result of this appeal, but both counsel invited us to take a wider view of our obligations, and, since the question was discussed by the Court of Appeal in general terms and since I believe that the result of our decision is to overrule a number of decided cases, at least to some extent, I feel bound to accede to this invitation. The question certified by the Court of Appeal was:

"If stolen goods are returned to lawful custody and thus cease to be stolen by virture of s. 24(3) of the Theft Act 1968 can a person who subsequently dishonestly handles goods believing them to be stolen be guilty of the offence of attempting to handle stolen goods?"

8

I have already given a negative answer to this question, but the range of the discussion before us demands a wider consideration of the principles involved.

9

An attempt to commit a criminal offence is itself a criminal offence at common law, and by s. 6(4) of the Criminal Law Act. 1967, it remains an offence as an attempt notwithstanding that the accused person is shown to have been guilty of the completed offence. But what is an attempt? The earliest attempt at definition in comparatively modern times is in Eagleton (1855) Dears. C.C. 515 at p. 538 per Parke B. when he said:

"The mere intention to commit a misdemeanour is not criminal. Some act is required, and we do not think that all acts towards committing a misdemeanour are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are; and if. in this case, after the credit with the relieving officer for the fraudulent over-charge, any further step [emphasis his] on the part of the defendant had been necessary to obtain payment …. we should have thought that the obtaining credit… would not have been sufficiently proximate to the obtaining the money. But, on the statement in this case, no other act on the part of the defendant would have been required. It was the last act, depending on himself, [emphasis his] towards the payment of the money, and therefore it ought to be considered as an attempt."

10

A more modern definition is to be found in the judgment of Lord Parker C.J. in Davey v. Lee [1968] 1 Q.B. 366 at p. 370 where he said:

"What amounts to an attempt has been described variously in the authorities, and for my part I prefer to adopt the definition given in Stephen's Digest of the Criminal Law, 5th Ed. (1894) art. 50, where it says that:

'An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted.'

As a general statement that seems to be right, although it does not help to define the point of time at which the series of acts begins. That, as Stephen said, depends upon the facts of each case.

A helpful definition is given in paragraph 4104 in the [then] current edition of Archbold's Criminal Pleading, Evidence and Practice, where...

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