R v Creamer
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 13 July 1965 |
| Judgment citation (vLex) | [1965] EWCA Crim J0713-2 |
| Docket Number | No. 673/65 |
| Court | Court of Criminal Appeal |
| Date | 13 July 1965 |
[1965] EWCA Crim J0713-2
The Lord Chief Justice of England (Lord Parker)
Mr. Justice Ashworth
and
Mr. Justice Waller
No. 673/65
IN THE COURT OF CRIMINAL APPEAL
Royal Courts of Justice
MR. P.M. PAKENHAM appeared as Counsel for the Appellant.
MR. S.A. MORTON appeared as Counsel for the Crown.
In March of this year at the Central Criminal Court this Appellant, together with a Mrs. Harris, were jointly indicted with unlawfully killing one Angela Price, and both were convicted of manslaughter. Mrs. Harris was sentenced to 3 years' imprisonment and the Appellant was fined £150, and in default 6 months' imprisonment. The Appellant now appeals by Certificate of the learned Common Serjeant, the ground of appeal being whether an accessary before the fact to manslaughter i.e. involuntary manslaughter resulting from criminal abortion is an offence known to the law.
It was the prosecution case that this young woman died in the course of an abortion performed solely by Mrs. Harris, and that the Appellant, who was not present at the time, had arranged for the abortion to be performed, and indeed had introduced the parties, and was accordingly an accessary before the fact. Having regard to the point raised by the Certificate, which is the only point with which we are concerned in this appeal, it is unnecessary to recite the facts. Suffice it to say that there was ample evidence that the Appellant had counselled or procured the abortion; the sole question is whether that being so, he could be found guilty of being an accessary before the fact to manslaughter, and therefore found guilty of the charge as laid against him.
In dealing with this Appellant, the Common Serjeant in his direction to the Jury, said this, and I am referring to page 4 of the transcript: "If he intended that that woman should do an unlawful and dangerous act upon the girl, and took the steps to procure the doing of that act, and if the girl died as a result of that act, then, Members of the Jury, this case is proved against him, and your verdict against him would be guilty". It is that direction which is attacked in that, so it is said, there is no offence known to the law of being an accessary before the fact to manslaughter.
So far as the authorities are concerned, this Court has been referred in the first instance to Hale's Pleas of the Crown, Volume I, where at page 437 this is said: "In manslaughter there can be no accessaries before the fact, for it is presumed to be sudden, for if it were with advice, command, or deliberation, it is murder and not manslaughter, and the like of se defendendo. And, therefore, in an indictment of manslaughter only, if others be indicted as accessaries before the fact, the indictment is void against them. And if A be indicted of murder, and B as accessary before by procurement etc., and A is found guilty only of manslaughter, B shall be discharged".
The Court has been referred to the case of Bibithe in 2 Coke's Reports at page 399, and to the case of Goose, reported in Moore's King's Bench Reports at page 461, and 72 English Reports page 695. It is unnecessary to refer in detail to those cases, since the facts are not fully set out. Indeed it may well be that those are cases which have been referred to as cases of voluntary manslaughter, that is really murder reduced to manslaughter, for instance on grounds of provocation or on grounds of excessive force used in self defence.
Be that as it may, the 19th Century threw up cases disclosing a number of judicial views which, to say the least, assume that in cases other than voluntary manslaughter, a man can be guilty of being an accessary before the fact to manslaughter. Thus in Regina v. Smith and Taylor, reported in 2, Cox's Criminal Cases at page 233, Baron Parke assumed that that was possible. In that case, "upon an indictment against two for manslaughter by administering poison, charging both as principals, it appeared that the prisoners had agreed to administer the poison, not for the purpose of killing, but to make the deceased remain at home, and in order to reform his habits; and that one of the prisoners was not present when the poison was administered". The report shows that Baron Parke was referred to the passage in Hale, and said that that did not appear to him applicable to a case like the present, but only to the cases of a sudden blow and the like. He would, however, consult his learned Brother on the subject, and after consultation with Mr. Justice Patteson, he stated that that learned Judge inclined to a different opinion, and, if necessary, therefore, he would reserve the point.
In Gaylor's case, reported in Volume I Dearsly & Bell's Crown Cases at page 288, and also in 7 Cox's Criminal Cases page 253, views similar to that expressed by Baron Parke were given. Looking at Dearsly & Bell's Reports, Baron Bramwell in the course of the argument, at page 291, said this: "Suppose a man, for mischief, gives another a strong dose of medicine, not intending any further injury than causing him to be sick and uncomfortable, and death ensues., would not that be manslaughter", to which he clearly intended the answer "yes". Then he went on: "Suppose, then, another has counselled him to do it, would not he who counselled be an accessary before the fact", clearly indicating his view on the matter. In the report in 7 Cox's Criminal Cases it is clear that Mr. Justice Erle was also taking the same view. At page 255 he is reported as having said: "It is clear that Lord Hale, in laying down the law in the passage cited, only alludes to cases of killing per infortunium or se defendendo. In other cases of manslaughter there seems to be no reason why there may not be accessories".
The Court was also referred to Fretwell's case in 9 Cox's Criminal Cases, page 152, but in the opinion of this Court is is unnecessary to refer to that case. More important is the case of Taylor in 1875, reported in 13 Cox's Criminal Cases at page 68. In that case: "Two persons about to fight one another with their fists deposited £1 each with the prisoner as stake-holder, who consented to hold it until after the fight, and then to pay the £2 to the winner. The prisoner did not in any way otherwise than by holding the money promote or encourage the fight. The fight took place, and, from injuries then received, one of the men died subsequently. The prisoner was not at the fight, but afterwards paid the £2 to the winner of the fight. Held: that the prisoner was not an accessary before the fact to the manslaughter". In that case, as appears from page 69, Mr. Justice Brett had directed the Jury: "That if the prisoner held the money for the purpose of handing it to the winner of the proposed fight, he was by that alone in point of law an accessary before the fact to the breach of the peace which subsequently took place, and, inasmuch as that breach of the peace ended in manslaughter, he was an accessory before the fact to that manslaughter." The Jury thereupon found the prisoner guilty.
When the matter came before the Court of Criminal Appeal as to whether that direction had been correct in law, Chief Justice Cockburn said this: "The prisoner was not present at the fight, and all that he did was that he agreed to act as stake-holder, and received 1 Sovereign from each of the combatants, and consented to hold the 2 Sovereigns until after the fight, and then to pay them to the winner. In order to render the defendant liable to the charge there must be some active proceeding on his part; he must procure or incite them to fight or in some way encourage them to do so. In this case the defendant was perfectly passive, and it is enough to say that there is nothing to show such a participation in the fight on the part of the defendant as to make him an accessary before the fact to the manslaughter under the circumstances". Baron Bram-well said: "I am of the...
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