NOTES OF CASES
| Published date | 01 September 1958 |
| DOI | http://doi.org/10.1111/j.1468-2230.1958.tb00493.x |
| Date | 01 September 1958 |
NOTES
OF
CASES
D.
P.
P.
v.
HEAD:
A
QUESTION
OF
POLICY
IT
is clear that the decision of the House of Lords, reported
sub
nom.
Director
01
Public Prosecutions
v.
is of exceptional
public importance even though it turns on the construction of a
particular statute and is complicated by serious differ-nces of
opinion dividing some
of
their Lordships. One feature, of the
decision is worth noting at the outset: although Lord Denning
disagreed significantly with the conclusions reached by the Court
of Criminal Appeal and with many of the views of the majority
in the House of Lords, he nevertheless concurred in dismissing the
appeal
on
t.he ground that it would be unfair to the respondent
to
reverse
an
acquittal on a point of law which had not been adequately
argued in the lower court. Whethcr or not one agrees with Lord
Denning regarding the merits of the point in qucstion, it is difficult
to disagree with this type of approach. Although the Divisional
Court can, and does freely, reverse acquittals, it is clearly much
more serious for the House of Lords to do
so
and, indeed, it is
questionable in principle whether a succcssful appeal in the House
of Lords against the reversal of
a
conviction should ever affect the
liberty of the Onc may respectfully suggest that if
the Court of Criminal Appeal werc more accustomcd to delivering
reserved judgments in obviously appropriate cases, this particular
1
See further an article in [1958] Crin1.L.R.
pp.
270-280, by an anonymous
author. entitled
‘’
D.
P.
1’.
u.
Head:
A
Question of Proof.”
f
[1958]
1
All
E.R.
679;
ah30 reported
[IQSS]
2
W.L.R. 617. The case raiscs,
in an
acute
form, the problem relating to the exercise of a veto by the
Attorney-General of the right
to
appeal in criminal cascs
to
the
House
of
Lords. There are at least two decision8
of
the
Court
of Criminal
Appeal
in
the last year,
R.
v.
Vickers
[1957] 2
All
E.R.
741 and
R.
V.
Sprigg.$
[1958]
1
All
E.R.
300,
leave
to
appeal against which wa8 refused
to
a
corivictcd person,
which Inmy believed deserved a priority cqual
to
that accorded
to
li.
v.
Heud.
It
is, therefore, particularly unfortunate that the first criminal appeal
to
be
heard by
the
House
of Lords for some time is not an appeal against a
conviction sustained by the Court of Criminal
Appeal
but an appeal against
the reversal of
a
conviction by that court in face of the arguments of the
Attorney.Genernl. Although the closeness of his connection with the conduct
of the
case
must inevitably sharpcn his appreciation of its importance, it
is
difficult
to
see how the premnt system can expect
the
Attorney-Genernl
adequately
to
dissociate his functions of Crown Prosecutor and impartial judge
of
the right
to
appeal. and how he can even give the appearance of being
a disinterested party in deciding whethcr to allow an appeal
to
go forward.
3
That it may
be
neceseary
to
allow the law
to
he clarified by their Lordships
is undeniable:
the
ueual
argument in favour of abolishing the jurisdiction
of
the
House
of
Lords
ia
obviously much atronger with regard
to
the
civil
jiirivdictiou of their Lordrihips than
to
tlirsir criminal jurisdiction. In practice,
appeals ngainst the reversal of a conviction are extremely rare and, even if
successful. nre not necessarily
fully
efiective;
see.
c.g.,
the practice adopted
in
D.
P.
P.
v.
Beard
[I9201 A.C.
479.
538
SEPT.
1968
NOTES
OF
CASES
589
problem, as well as the more general problem regarding the exercise
of the Attorney-General’s fiat,“ would hardly ever arise in practice.
In
Viscount Simonds’ words, “The bald facts of the case are
that the respondent was charged with having had carnal knowledge
of a woman who was placed out
on
licence from an institution for
mental defectives, contrary
to
section
56
(1)
(a)
of the Mental
Deficiency Act,
1918.
He was convicted, but
on
appeal the convic-
tion was quashed
. . .
on
the ground that the woman was not
lawfully detained
in
the institution.”S The relevant part of the
section, which has now been replaced by section
8
of the Sexual
Offences Act,
1956,
states that
a
misdemeanour is committed by
any person who
“
(a) unlawfully and carnally knows, or attempts
to have unlawful carnal knowledge of, any woman or girl under
care or treatment in an institution or certified house or approved
home, or whilst placed out
on
Iicence therefrom or under guardian-
ship under this Act.” A further proviso, to the effect that it is
a
good defence if the accused proves that
“
he did not know and had
no
reason to suspect, that the woman or girl was a defective,”
was
not relevant to the facts of the case since Head admitted an
act
of intercourse following warnings that the
girl
concerned was out
on
licence from an institution for mental defectives.
At the Carlisle Assizes, Head was convicted despite the fact that
the medical certificates, required by section
9
of the Act for the
satisfaction of the Home Secretary before he could make an order
transferring the girl to an institution, were both defective, since
neither showed that she
‘‘
required care, supervision, and control
for the protection of others.” Hinchcliffe
J.
held that the order
was conclusive and the defence could not go behind
it.
“he
purported licence permitting her
to
be absent was
not
put
in
evidence.
In
the Court of Criminal Appeal, the conviction was reversed.‘
It
was stated that the order was invalid because of the defects in
the certificates, even though
it
had been relied
on
for some ten
years, and Lord Goddard added that had the girl applied
at
any
time for certiorari or habeas corpus, she would have
been
immediately discharged. Although the relevant paragraph did
not,
like the subsequent paragraphs, refer to
“
a defective,” but instead
to “any woman or girl under care or treatment
in
an institution
or
.
. .
out
on
licence therefrom,” the concluding words
of
the
paragraph, “under this Act,” had to be read distributively and
Head could only be convicted if the girl was lawfully
“
under care
or treatment in an institution or
.
.
.
out
on
licence therefrom.”
‘‘
The prosecution was never competent from the outset, since the
woman lacked the necessary status to bring section
56
into
operation.”
‘
4
Supra.
n.
2.
5
[19581
1
All
E.R.
679,
at
p.
681.
4
119571
3
All
E.R.
426.
r
Ibid.,
at
p.
430,
per
Donovon
J.
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