R v Lillis
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,THE LORD CHIEF JUSTICE |
| Judgment Date | 15 May 1972 |
| Judgment citation (vLex) | [1972] EWCA Crim J0515-4 |
| Docket Number | No. 348/A/72 |
| Court | Court of Appeal (Criminal Division) |
| Date | 15 May 1972 |
[1972] EWCA Crim J0515-4
The Lord Chief Justice of England (Lord Widgery)
Lord Justice Edmund Davies
Lord Justice Lawton
Mr. Justice Shaw
and
Mr. Justice Wien
No. 348/A/72
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. B. SHINER appeared as Counsel for the Appellant.
MR. M. RUSH appeared as Counsel for the Crown.
Lord Justice Lawton will give the Judgment of the Court.
This appeal against conviction raises two questions: first, what is the right construction of section 6 (3) of the Criminal Law Act, 1697; and secondly, how should that construction be applied to the facts of this case. Section 6 (3) provides as follows:
"Where on a person's trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could he found guilty on an indictment specifically charging that other offence."
The Appellant was convicted at the Gloucester Crown Court on the 14th January, 1972, on an indictment which charged him with burglary. The particulars of offence were in these terms:
"Michael Joseph Patrick Lillis, on a day unknown between the 1st and 31st May, 1971, in the County of Gloucester, having entered as a trespasser part of a building namely the conservatory at 2, Spring Cottages, Down Hatherley, stole therein a rotary grass mower."
The prosecution's case as opened was that the Appellant had entered as a trespasser the conservatory of a house belonging to a Mr. Maraffi and had stolen therein a rotary grass mower. One of the prosecution's witnesses was Mr. Maraffi's daughter. She said in evidence that she had given permission to the Appellant to take the mower from the conservatory in order to get it repaired. The mower was never seen again by Mr. Maraffi and there was ample evidence that the Appellant had dishonestly appropriated it so as to make him guilty of theft; but it was not established when he had stolen the mower save that it must have been after the 1st May, 1971 and before the beginning of August, 1971.
Before the close of the prosecution's case the trial judge discussed briefly with counsel the effect of Miss Maraffi's evidence on the prosecution's case and when that case was closed Mr. Shiner on behalf of the Appellant submitted that his client had no case to answer. The judge accepted that the prosecution had failed to establish a prima facie case of burglary; but ruled that section 6 (3) of the Criminal Law Act, 1967, applied so as to enable the Court to consider a case against the Appellant of stealing the mower. The case proceeded on that basis and after a summing-up of which no complaint is made, the jury returned a verdict of not guilty of burglary but guilty of theft. On the certificate of the trial judge granted under section 1 (1) of the Criminal Appeal Act, 1968, the Appellant appealed against that verdict. The trial judge in his certificate referred to what had happened at the trial and asked whether he had been "correct in inviting the jury to consider whether the accused was guilty of theft, even though the theft was not committed in the building."
Before this Court Mr. Shiner did not suggest that the reduction of the charge had embarrassed or prejudiced his client in any way. His submission was that on the evidence in this case section 6 (3) could not be applied at all so as to reduce the charge of burglary to one of theft. He contended that on the right construction of section 6 (3) the reduced charge had to be an ingredient of the offence originally charged. A theft outside a building could never, he said, be an ingredient of burglary because the stealing which is an ingredient of that offence must be committed within the building. If this submission is right the law would produce some odd results. If, for example, this appellant had gone to the conservatory intending to steal the mower from inside, where he knew it was normally kept, but found on getting there that Mr. Maraffi had absent mindedly left it leaning against the door on the outside and had not told the prosecution that he had done so on an indictment charging the appellant with burglary he could not he convicted of any offence. In putting his case in this way he was seeking to apply what Lord Justice Sachs had said in Springfield, (1969) 53 Criminal Appeal Reports 608 at page 611, namely "The test is to see whether it is a necessary step towards establishing the major offence to prove the commission of the lesser offence: in other words is the lesser offence an essential ingredient of the major one?" Mr....
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