Public Mischief in Criminal Conspiracy
| Published date | 01 January 1971 |
| Date | 01 January 1971 |
| DOI | http://doi.org/10.1111/j.1468-2230.1971.tb02316.x |
NOTES
017
CASES
PUBLIC
MISCIIIEF
IN
CRIMINAL
CONSPIRACY
DIIARAbf
SINGII
BHAGWAN
was
a
citizen of India. He was thus also
a
Commonwealth citizen subject to
the
Commonwealth Immigrants
Act
1062.
Realising that examination by an immigration officer
at a port of entry on arrival in the United Kingdom would very
likely result in his immediate return to India,
Mr.
Bhagwan arranged
with others to land surreptitiously at a point on the English coast
where there would be
no
immigration officer to meet him. This
plan proved successful, and Mr. Bhagwan went undetected
in
the
United Kingdom
for
some months. All this he frankly admitted
when apprehended, the resul’t being that he was charged with
conspiring to evade the control on immigration
of
Commonwealth
citizens into the United Kingdom imposed under the Common-
wealth Immigrants Act
1062.
When the trial judge dismissed his applicetion that the indict-
ment disclosed no offence known to the law, he pleaded guilty and
was sentenced to one day’s imprisonment and recommended for
deportation.’ He appealed on the same ground to the Criminal
Division of the Court of Appeal which, in
a
reserved judgment,
unanimously upheld the appeal and quashed the conviction.2 The
Crown appealed to the House of Lords in the first case on criminel
conspiracy to reach their lordships House since
Shaw
v.
D.P.P.3
nine years ago. The appeal
was
unanimously dismissed and the
decision of the Court
of
Appeal was affirmed.“
The
1962
Act did not make i’t
a
substantive offence for
a
Commonwealth citizen subject
to
its terms to land in the United
Kingdom other than at
a
recognised port and without submitting
himself to examination by an immigration officer,
as
it is in the
case of an alien.5 But
a
device to circumvent this seemed to be at
hand; hence ithe indictment for conspiracy. But had
Mr.
Bhagwan
conspired to commit
“
an unlawful act
”?
The only possible rubric
under which it could fall
was
that of public mischief, although it
was not articulated as such in the indictment.
The Crown made
two
alternative submissions. T,he first and
narrower ground turned exclusively on whether
a
duty on the
immigrant to present himself for examination on arrival could be
Deportation by the IIon~e Secretory
was
possible only if recommended by
a
court following conviction for an offence
punisliable
with imprisonment
:
Commonwealth Immigrants Act 1962, Pt.
11.
Hence the prosecution; but why
Chc scntcnce
of
imDrisonmont?
2
Sub
mnt.
R.
v.
BlLagwan
[1970]
2
W.L.R.
837;
[1970]
1
All
E.R..
1129.
3
[1962]
A.C.
220.
4
D.P.P.
v.
Bhagwan
“701
3
All
E.R.
97;
sub
nont.
R.
v.
BIiagwan
[1970]
3
W.L.R.
501.
5
Aliens Order 1953 (S.I.
1953
NO.
1671),
art.
1
(1).
See, however,
Verrier
v.
D.P.P.
[1967]
2
A.C. 195.
81
82
THE MODERN
LAW
REVIEW
VOL.
34
inferred from the Act. Lord Diplock, delivering the only speech
in the House of Lords, in which all their lordships concurred, re-
jected this line of argument both on the wording of the statute and
on
a
broader consideration of its purpose. The substance of the
refutation needs no rehearsal here since it has no relevance to the
law of conspiracy in generaL6 Unfortunately his lordship did not
decide
or
even adveit to the consequences of combining with others
to evade
a
statutory duty not otherwise punishable, and it is
probleniatical whether without straining (the law, it could be brought
within any of the existing heads of conspiracy
as
we later find to be
necessary.
However, even without this implied statutory duty, argued the
Crown in the alternative, the purpose which the Act was intended
to
achieve would be frustrated unless Commonwealcth immigrants
landing in the United Kingdom did present themselves for examina-
tion. Accordingly, the agreement had
a
tendency to frustrate the
purpose of the statute and for that reason was
a
criminal con-
spiracy at common law.
That it may have frustrated the purpose of the statute as the
Crown contended was irrelevant. This, held Lord Diplock, simply
did not amount to
a
public mischief:
“
My Lords,
I
know of no authority which would justify
your Lordships
in
holding it to be
a
criminal offence for any
person, whether
or
not acting in concert with others, to
do
acts which are neither prohibited by Act of Parliament nor at
common law, and do not involve dishonesty
or
fraud
or
decep-
tion, merely because the objeot which Parliament hoped to
achieve by the Act may be thereby thwarted.’’
“
If
it were otherwise,” added his lordship later,
“
freedom
under the law would be but an empty phrase.”8 This goes con-
siderably further than the Court of Appeal’s j~dgment,~ which
held only that, while
to
defeat the clear intention
or
purpose of
a
statute was unlawful, the appellant’s conduct here did nothing
which ain their understanding of the statute’s purpose could be
so
regarded.
Lord Diplock drew the analogy with revenue cases. Decisions
of
the House of Lords and other courts constantly reward taxpayers’
ingenuity by sanctioning the ordering of their affairs
so
as
to
minimise the incidence of taxation. Although the legislative intent
6
It
is,
however,
interesting
to
record that
Lord
Diplock did
confefis
to
I‘
Borne
initial dificulty in
the
very concept
of
a
statutory duty owed by the subject
t:
the
Crown nhicli attracts no sanctions either penal
or
civil
for
its
breach
([1970]
3
All
E.R.
at p.
102),
but
this was not the principal ground
for
re-
jecting
&he
contention. For
an
excellent discusston on the sanctionless duty,
see
R.
W.
M.
Dias,
JzcrisprzLdence
(2nd
ed.,
1964),
pp.
199-214, and the
source';
cited therein.
[1970]
3
A11
E.R.
70,
105.
importance was involved, refused lea*.e
to
appeal.
8
Ibid.
at p.
10G.
9
Yet
the Court
of
Appeal, while certifying that
a
point of
law
of general public
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