R v Hollinshead

JurisdictionEngland & Wales
JudgeLord Fraser of Tullybelton,Lord Bridge of Harwich,Lord Diplock,Lord Roskill,Lord Brandon of Oakbrook
Judgment Date20 June 1985
Date20 June 1985
CourtHouse of Lords

[1985] UKHL J0620-2

House of Lords

Lord Fraser of Tullybelton

Lord Diplock

Lord Roskill

Lord Bridge of Harwich

Lord Brandon of Oakbrook

Regina
and
Hollinshead
(Respondent)
(on Appeal from the Court of Appeal (Criminal Division))
Regina
and
Dettlaf
(Respondent)
(on Appeal from the Court of Appeal (Criminal Division))
Regina
and
Griffiths
(Respondent)
(on Appeal from the Court of Appeal (Criminal Division))
(Consolidated Appeals)
Lord Fraser of Tullybelton

My Lords,

1

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Roskill, with which I agree. I wish especially to draw attention to the observation at the end of his speech with regard to the proper order to be made in the Court of Appeal (Criminal Division) in cases where that court has quashed a conviction on a point of law and the prosecution state that they wish to consider bringing the matter before this House.

2

For the reasons given by my noble and learned friend I would allow these appeals and answer the questions as he suggests.

Lord Diplock

My Lords,

3

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Roskill. I agree with it and for the reasons which he gives I would allow the appeals and answer the certified questions as he proposes.

Lord Roskill

My Lords,

4

The changes in the law of criminal conspiracy wrought by Part I of the Criminal Law Act 1977 unhappily continue to give rise to controversy and marked differences of judicial opinion. Those of your Lordships who took part in the decision in Reg. v. Ayres [1984] A.C. 447, might have been forgiven for hoping that the reasons given by my noble and learned friend, Lord Bridge of Harwich, in a speech with which all your Lordships then present agreed, would finally have stilled that controversy. But the judgment of the Court of Appeal (Criminal Division) (Stephen Brown L.J. and Hodgson and Glidewell JJ.) in the present appeals which was delivered by Hodgson J., shows that such hope if once entertained was entertained in vain.

5

The three respondents and another defendant appeared at Bristol Crown Court on 22 May 1984 to face an indictment which so far as presently relevant contained two counts. I set out the terms of those two counts in full:

"Count 1. Statement of Offence.

Conspiracy, contrary to section 1 of the Criminal Law Act 1977.

Particulars of Offence

[the respondents] … on a day or days unknown between the 1st day of July and the 19th day of September 1983 conspired together to aid, abet, counsel or procure persons unknown by deception and with intent to make a permanent default in whole or in part on an existing liability dishonestly to induce one or more of the Electricity Boards to wait for or to forgo payment for electricity supply.

Count 2. Statement of Offence.

Conspiracy to defraud, contrary to Common Law.

Particulars of Offence

[the respondents] … on a day or days unknown between the 1st day of July and the 19th day of September 1983 conspired together to defraud one or more Electricity Boards by the manufacture and/or sale of devices to alter electricity meters."

6

The essential facts which gave rise to these two counts were simple. I gratefully borrow the succinct statement of those facts by the trial judge, His Honour Judge Fallon Q.C., in the course of his ruling after submissions on behalf of the respondents at the close of the prosecution case, submissions which the judge rejected:

"The evidence is not in dispute. Devices known as 'black boxes' have been manufactured in various parts of the country, having originated it seems, according to an article in the "Sun" newspaper, in Germany. It is a simple contraption. Its main component is a 240 volt transformer with primary and secondary windings. Because of its simplicity the transformer is concealed in epoxy resin inside of which three wires connect to the transformer: one to its frame which is the earth; one to the primary winding, and the third to both primary and secondary windings. Outside the box the earth wire has a bulldog jaw or clip attached to its end, and the other two wires have probes attached to them. Its operation is simplicity itself. The earth wire is attached to a suitable earth. One probe is pushed up the terminal of the power line on the supplier side of the meter, and the other up the terminal of the power line on the consumer's side. So connected it can produce a current of 50 amps and cause it to flow from the consumer to the supplier side of the meter. The effect of this flow of current is to cause the unit counter to move in reverse and thus to make it appear that less electricity has been consumed than is the case….

It is an accepted fact that there is no other useful purpose to which a black box can be put.

The defendant Griffiths made a number of boxes which in his statement he said he made for sale to make money. The defendant Dettlaf knew of this source of boxes, and indeed supplied two to the defendant Hollinshead, who lived with his sister - or to Hollinshead and his sister.

A detective constable met Hollinshead in a public house and arranged to buy boxes at £100 each. Twenty were to be delivered the next day, and the deal was to be done at the Gordano Service Station on the M5.

Hollinshead rang Dettlaf, who arranged for Griffiths to make the boxes. The three defendants met the detective constable and another detective constable. They had nineteen boxes with them. Other police officers then arrested them."

7

I emphasise the sentence which I have just quoted "It is an accepted fact that there is no other useful purpose to which a black box can be put." In the Court of Appeal (Criminal Division) [1985] 2 W.L.R. 761, 763, Hodgson J. put the same point in slightly different language:

"Any use to which [the black boxes] may be put will thus inevitably constitute a fraud on an electricity board."

8

The evidence clearly established an agreement between the respondents to make and sell these black boxes, the respondents well knowing that those boxes had only one use, a dishonest use, albeit a dishonest use by persons other than the respondents, for the purpose of defrauding electricity boards. Nevertheless it was strenuously argued for the respondents at the close of the prosecution's case that those simple facts established neither a common law conspiracy to defraud as charged in count 2, nor the statutory conspiracy charged in count 1. The trial judge overruled these submissions, holding that those facts were properly charged in count 2 as a conspiracy to defraud. The respondents thereupon changed their pleas. Each pleaded guilty to count 2 and was thereupon convicted by the jury upon his own confession. Count 1 was ordered to be left on the file. The judge clearly and rightly took a serious view of these cases, for each of the respondents was sentenced to a term of imprisonment, only part of which was suspended. He granted a certificate to facilitate an appeal and released the respondents on bail.

9

In due course, the appeals were heard by the Court of Appeal (Criminal Division). That court on 21 December 1984 quashed the convictions.

10

Stated briefly, their reasons for so doing were, first, that the facts already stated were not properly the subject of a charge of conspiracy to defraud and that therefore the convictions on count 2 could not be sustained, and secondly, that convictions on count 1 could not be substituted because that count did not disclose an offence, conspiracy to aid and abet an offence not being a statutory conspiracy within section 1(1) of the Act of 1977.

11

It is right to say that the Court of Appeal (Criminal Division) recognised that the respondents' cases were without merit. But they felt constrained to reach this conclusion by reason of their understanding of the law both as to conspiracy to defraud at common law and as to statutory conspiracy.

12

The Court of Appeal (Criminal Division) certified two points of law as of general public importance:

"1. If parties agree (a) to manufacture devices whose only use is fraudulently to alter electricity meters and (b) to sell those devices to a person who intends merely to re-sell them and not himself to use them, does that agreement constitute a common law conspiracy to defraud? 2. Alternatively, is such an agreement properly charged as a statutory conspiracy to aid, abet, counsel or procure persons unknown to commit offences under section 2 of the Theft Act 1978?"

13

The court refused the prosecution leave to appeal but that leave was subsequently granted by this House.

14

My Lords, it is indeed clear that these appeals do raise questions of general public importance for if the judgment of the Court of Appeal (Criminal Division) be right, a serious lacuna in the law of conspiracy is revealed. I unreservedly share the views of those who have, in the recent past, deplored the practice of expanding and extending the common law offence of conspiracy in order to make criminal conduct by two or more persons which in the case of individuals would not be criminal and which therefore in the case of those persons could not be made the subject of substantive charges.

15

But to use the common law offence of conspiracy to make criminal that which would not otherwise be criminal seems to me wholly different from allowing participants in an agreement, the sole purpose of which was dishonest, to escape conviction for conspiracy to defraud because any ultimate successful execution of the fraud would be achieved by persons other than those who were parties to the dishonest agreement which was the subject of the conspiracy charge.

16

The Court of Appeal (Criminal Division) was of the opinion that the absence of an averment of and of proof of participation by the respondents in the ultimate successful execution of the fraud compelled that result. The...

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