R v Duncalf
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL |
| Judgment Date | 02 May 1979 |
| Judgment citation (vLex) | [1979] EWCA Crim J0502-1 |
| Docket Number | No. 5361/B/78 No. 5382/B/78 No. 5383/B/78 No. 5407/C/78 |
| Court | Court of Appeal (Criminal Division) |
| Date | 02 May 1979 |
[1979] EWCA Crim J0502-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Roskill
Lord Justice Ormrod
and
Mr. Justice Watkins
No. 5361/B/78
No. 5406/C/78
No. 5382/B/78
No. 5383/B/78
No. 5407/C/78
MR. R. HARRISON appeared on behalf of the Appellants.
MR. G. LIGHTFOOT appeared on behalf of the Crown.
These appeals raise an important question under sections 1(1) and 5(1) and (2) of the Criminal Law Act 1977, a question much debated in distinguished academic circles but not yet the subject of direct decision in this Court. The five appellants were convicted at Wakefield Crown Court on. 23rd October 1978 of conspiracy to steal, the charge being laid as one of conspiracy to steal contrary to sections 1 and 3 of the Criminal Law Act 1977. Section 3 of that Act does not matter for present purposes.
For ease of reference we quote or summarise the relevant sections of that Act as follows: Section 1(1) contains the definition of the statutory offence of conspiracy and is in these terms: "(1) Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement if the agreement is carried out in accordance with their intention, he is guilty of conspiracy to commit the offence or offences in question." The subsection bears the following side note: "The offence of conspiracy."
Section 3 deals with penalties and departs to a material extent from the penalties applicable at common law.
Section 4 imposes certain restrictions on the institution of proceedings for conspiracy which are not presently material.
Section 5(1) provides for the abolition of the common law offence of conspiracy, "subject to the following provisions of this section". Subsection (2), which is the relevant provision in the present appeals, reads as follows: "(2) Subsection (1) above shall not affect the offence of conspiracy at common law so far as relates to conspiracy to defraud, and section 1 above shall not apply in any case where the agreement in question amounts to a conspiracy to defraud at common law." Subsection (3) contains a further exception relating to agreements to corrupt public morals or to outrage public decency.
The facts were of the simplest. On 20th February 1978 all the appellants went to Heckmondwike by car. During the next three-quarters of an hour or so the appellants between them visited no less than eleven shops. The Crown alleged that these visits had but one objective, namely seeing what they could steal. The defence claimed that these visits, however seemingly suspicious their objective, had no other objective than window shopping. The jury having heard all the evidence, including that of the appellants and certain police evidence of alleged confessions, rejected the defence and convicted all the appellants. Thus there can be no doubt that the jury had found as a fact that these five appellants had a dishonest objective, namely theft, even though nothing was in the event stolen.
The main ground of appeal was that these five appellants had been charged with and convicted of an offence which did not exist. It was argued that because their intention was dishonest and they had as their objective the ultimate defrauding of the shopkeepers concerned, they should have been charged, not with conspiracy to steal contrary to section 1 of the 1977 Act, but with conspiracy to defraud contrary to the common law, an offence expressly preserved by section 5(2) of that Act. In short, therefore, it was said that whenever the conspiracy charged contains an element of dishonesty and thus of intent to defraud, the conspiracy must be charged as a conspiracy to defraud contrary to the common law or possibly as a conspiracy to steal contrary to the common law, and not as a conspiracy to commit one or more of the specific offences in fact agreed upon such as theft or robbery or forgery or obtaining property by deception, as the case might be, envisaged by section 1(1) of the 1977 Act.
This is not the first occasion upon which this submission has been advanced. It was seemingly first advanced at Nottingham Crown Court in Quinn's case before Mr. Justice Drake on 24th October 1978 - curiously enough the day after the conviction of these appellants. There the indictment contained two counts, the first of conspiracy to steal contrary to section 1 of the 1977 Act, and secondly of conspiracy to steal at common law. The learned Judge was invited to rule which of the two counts should be proceeded with. The learned Judge, a note of whose ruling appears in (1978) Crim. L.R. 750, ruled that the correct count upon which to proceed was the second and that inasmuch as conspiracy to defraud included conspiracy to steal, while the offence could have been charged as conspiracy to defraud by conspiring to steal, it was nevertheless correct to charge the offence as conspiracy to steal at common law.
The learned Judge recognised that his ruling might surprise those who were responsible for the relevant part of the 1977 Act and he accepted that his ruling would have the effect of greatly limiting the scope of that Act. Some of the consequences of the ruling are noted in (1978) Crim. L.R. at pages 751 and 752. For ease of reference we repeat that note:
"The effect of the ruling is that conspiracy to steal, or to commit any other offence which necessarily involves fraud, continues to be an offence at common law and not under the Act. The practical consequences are as follows.
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"1. The substantive law applicable is the common law of conspiracy and not section 1 of the Criminal Law Act 1977.
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"2. The maximum sentence continues to be life imprisonment or an unlimited fine, although the penalty for the offence which the parties have agreed to commit is less (in the present case, 10 years' imprisonment under the Theft Act 1968).
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"3. The conspiracy is not an arrestable offence as it would be if it were a conspiracy contrary to section 1 of the 1977 Act.
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"4 The restrictions on the institution of proceedings to commit a summary offence contained in section 4 of the Criminal Law Act 1977 are inapplicable where the summary offence necessarily involves fraud."
Subsequently in R. v. Tovey and Others (No. 3467/A/78 and others, heard on 27th February 1979) a similar point came before this Court. We have the benefit of the transcript of the judgment of this Court (The Lord Chief Justice, Lord Justice Cumming-Bruee and Mr. Justice Neill). As appears from page 2 of that transcript, the offence in question was there charged as conspiracy to defraud...
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Courts of Appeal
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