R v Dytham
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 18 July 1979 |
| Judgment citation (vLex) | [1979] EWCA Crim J0718-1 |
| Docket Number | No. 5379/B/78 |
| Court | Court of Appeal (Criminal Division) |
| Date | 18 July 1979 |
[1979] EWCA Crim J0718-1
The Lord Chief Justice of England (Lord Widgery)
Lord Justice Shaw
and
Mr. Justice McNeill
No. 5379/B/78
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. G.H. WRIGHT, Q.C. and MR. D.G. MADDEN appeared on behalf of the Appellant.
MR. T.P. RUSSELL, Q.C. and MR. H.H. ANDREW appeared on behalf of the Crown.
The judgment that I am about to read is the judgment of the court prepared by Lord Justice Shaw.
The Appellant was a police constable in Lancashire. On the 17th March, 1977 at about 1 o'clock in the morning he was on duty in uniform and was standing by a hot dog stall in Duke Street, St. Helens. A Mr. Wdncke was inside the stall and a Mr. Sothern was by it. Some thirty yards away was the entrance to Cindy's Club. A man named Stubbs was ejected from the club by a bouncer. A fight ensued in which a number of men joined. There arose cries and screams and other indications of great violence. Mr. Stubbs became the object of a murderous assault. He was beaten and kicked to death in the gutter outside the club. All this was audible and visible to the three men at the hot dog stall. At no stage did the Appellant make any move to intervene or any attempt to quell the disturbance or to stop the attack on the victim. When the hubbub had died down he adjusted his helmet and drove away. According to the other two at the hotdog stall, he said that he was due off and was going off.
His conduct was brought to the notice of the police authority. As a result he appeared on the 10th October, 1978 at the Crown Court at Liverpool to answer an indictment which was in these terms: "The charge against you is one of misconduct of an officer of justice, in that you misconducted yourself whilst acting as an officer of justice in that you being present and a witness to a criminal offence namely a violent assault upon one … Stubbs by three others deliberately failed to carry out your duty as a police constable by wilfully omitting to take any steps to preserve the Queen's Peace or to protect the person of the said Stubbs or to arrest or otherwise bring to justice (his) assailants."
On arraignment the Appellant pleaded not guilty and the trial was adjourned to the 7th November. On that day before the jury was empanelled Counsel for the appellant, or defendant of course as he was then, took an objection to the indictment by way of demurrer. The burden of that objection was that the indictment as laid disclosed no offence known to the law. Neill J. ruled against the objection and the trial proceeded. The defence on the facts was that the appellant had observed nothing more than that a man was turned out of the club. It was common ground that in that situation his duty would not have required him to take any action. The jury were directed that the crucial question for their consideration was whether the defendant had seen the attack on the victim. If he had they could find him guilty of the offence charged in the indictment. The jury did return a verdict of guilty. Hence this appeal which is confined to the matters of law raised by the demurrer pleaded at the court of trial.
At the outset of his submissions in this court Counsel for the Appellant conceded two matters. The first was that a police constable is a public officer. The second was that there does exist at common law an offence of misconduct in a public office.
From that point the argument was within narrow limits though it ran deep into constitutional and jurisprudential history. The effect of it was that not every failure to discharge a duty which devolved on a person as the holder of a public office gave rise to the common law offence of misconduct in that office. As Counsel for the Appellant put it, non-feasance was not enough. There must be a malfeasance or at least a misfeasance involving an element of corruption. In support of this contention a number of cases were cited from 18th and 19th century reports. It is the fact that in nearly all of them the misconduct asserted involved some corrupt taint; but this appears to have been an accident of circumstance and not a...
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