R v Ludlow

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Hodson,Lord Donovan,Lord Wilberforce,Lord Pearson,Lord Diplock
Judgment Date11 Feb 1970
Judgment citation (vLex)[1970] UKHL J0211-1

[1970] UKHL J0211-1

House of Lords

Lord Hodson

Lord Donovan

Lord Wilberforce

Lord Pearson

Lord Diplock

Ludlow
and
Commissioner of Police for the Metropolis

Upon Report from the Appellate Committee, to whom was referred the Cause Ludlow against Commissioner of Police for the Metropolis (on Appeal from the Court of Appeal (Criminal Division)), that the Committee had heard Counsel, as well on Monday the 15th as on Tuesday the 16th, days of December last, upon the Petition and Appeal of Edward Alexander Ludlow, at present detained at Her Majesty's Prison, Camp Hill, Newport, Isle of Wight, and formerly of 286 Osborne Road, Acton, W.3, in the Greater London Area, praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal (Criminal Division) of the 3d of November 1969, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of the Commissioner of Police for the Metropolis, the Respondent to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division), of the 3d day of November 1969, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.

Lord Hodson

My Lords,

1

I have had the opportunity of reading the speech of my noble and learned friend, Lord Pearson. I agree with it and would dismiss the appeal.

Lord Donovan

My Lords,

2

I agree.

Lord Wilberforce

My Lords,

3

I have had the opportunity of reading the speech of my noble and learned friend, Lord Pearson. I agree with it and would dismiss the appeal.

Lord Pearson

My Lords,

4

On the 6th December, 1968, the Appellant was convicted at the Central Criminal Court of attempted larceny and of robbery with violence, and he was sentenced to consecutive terms of six months' and eighteen months' imprisonment. His appeal against conviction was dismissed by the Court of Appeal (Criminal Division) on the 15th July, 1969. On a subsequent application the Court of Appeal (Criminal Division), then differently constituted, certified that a point of law of general public importance was involved in the decision to dismiss the appeal, and they granted to the Appellant leave to appeal to this House. The certified point of law was:

"Whether on the facts of this case the joinder of Counts 1 and 3 in the same indictment and the joint trial thereof was right in law particularly having regard to the Indictments Act 1915 Schedule 1 rule 3".

5

It has been contended on behalf of the Appellant in the present appeal (1) that the joinder of the two counts in the same indictment was a misjoinder, not permitted by the Rule referred to in the certificate, and (2) that the learned Commissioner's refusal to make an order under section 5 (3) of the Indictments Act, 1915, for separate trials of the two counts was wrong.

6

Count 1 was "Attempted Larceny. Edward Alexander Ludlow on the 20th day of August 1968 attempted to steal property in the rest room of the Windmill Public House, 50 High Street, Acton W.3". Count 3 was "Robbery With Violence contrary to section 3 (1)( b) of the Larceny Act 1916. Edward Alexander Ludlow on the 5th day of September 1968 robbed Derek Ottway Fuller of 10s. and at the time of or immediately before or immediately after such robbery used personal violence to him".

7

To avoid duplication, I will adopt the statement of the facts given by Salmon L.J. in delivering the judgment of the Court of Appeal (Criminal Division) on the 15th July, 1969. He said:

"As to the count of attempted larceny: On the evening of 20th August, 1968, at the Windmill Public House in Acton the Appellant was seen by a barman emerging from a window of the staff room which had been left open. The barman asked him what he was doing. He did not reply but his companion, who was standing outside the window, said 'You're wasting your time, there's nothing in there worth 'pinching'. The barman went into the staff room and found all the drawers left open and other indications of a search having been made. Earlier in the evening he had visited the room and found nothing disturbed. The barman called the Police, but when they arrived the Appellant had disappeared. On the 5th September the barman identified him to the Police. When he was questioned by the Police, he said 'He can say what he likes. My mates will fix him'. He admitted that he had been to the private part of the public house on the 20th August, but denied that he had done anything there. When the Appellant gave evidence he denied that the barman had seen him emerging from the window, and suggested that it was his companion, and not he, who had been inside the private part of the public house, and that he had remained outside. He tried to explain his admission to the Police that he had been inside the private part of the public house by saying that he had been referring to the garden. On the evening of the 20th August, however, the garden had been open to the public and was being used as a Beer Garden. The Appellant's story was obviously very thin. There was strong evidence which clearly the Jury accepted that the Appellant had attempted to steal.

As to the count of robbery: On the 5th September, 1968, the Appellant and two others were drinking in the Prince of Wales public house in Acton where they remained for about two hours. Prior to 2.55 p.m. the Appellant had ordered a number of rounds of drinks for the three of them and paid on each occasion. Finally, at about 2.55 p.m., he ordered and was supplied with three more rums. When the relief manager, Fuller, asked the Appellant to pay for these drinks the Appellant refused saying 'You'll have to chase me if you 'want paying for these'. He then walked out of the public bar. Fuller followed him and threatened to call the Police unless the Appellant paid him for the three rums. The Appellant then produced a 10s. note and as he handed it to Fuller said 'I will only pay for my bloody drink'. Fuller went over to the till and rang up 9s. 9d., the price of the three drinks owed to him by the Appellant. The Appellant then got behind the counter and said 'I will break a bloody bottle if you charge me'. Fuller told him to get back to the public side of the counter, whereupon the Appellant snatched the 10s. from Fuller's hand and punched him in the face, breaking his glasses and cutting his face below the left eye and knocking a tooth out in doing so. He then ran away. The Appellant stated in the witness box that he had only ordered one drink, that he should only have been asked to pay 3s. 3d., for that drink, and that when he saw 9s. 9d. registered on the till he considered himself entitled to recover the 10s. note. He admitted he was wrong in using violence."

8

The questions arising in this appeal are to be decided under the provisions of the Indictments Act, 1915. Some reference to the previous law and practice will be relevant as an introduction to these provisions and may assist in the interpretation of them.

9

( a)At common law charges of felony and charges of misdemeanour could not be tried together, because the challenges and the incidents of trial were not the same. Castro v. Reg. (1881) L.R. 6 A.C. 229, 244 per Lord Blackburn.

10

( b) There was no rule of law against joining charges of felony in the same indictment, even if they related to distinct felonious acts, and having them tried together. After verdict such joinder of charges and joint trial would not be a ground for arrest of judgment. There was, however, a practice of the judges whereby, if it appeared that the accused was being charged in one indictment with distinct felonious acts, they would quash the indictment or put the prosecution to their election, requiring them to select one of the charges and proceed only on that. Young v. R. (1789) 3 T.R. 98 per Buller J. at pages 105-6; R. v. Kingston and others (1806) 8 East 41; R. v. Jones (1809) 2 Camp. 131, 132 per Lord Ellenborough; Reg. v. Hinley and another (1843) 2 M. and Rob. 525; Castro v. Reg. (supra). This practice was not a rule of law but only a matter of "prudence and discretion", per Buller J. in Young v. R. (supra). It was a general practice, but not invariable. In Reg. v. Hinley and another (supra) Maule J., having regard to the particular facts of the case, did not put the prosecution to their election. He said:

"There is no rule of law that more than one felony may not be charged in a single indictment: if there were such a rule, the great majority of indictments would be bad on error. It is true that judges are in the habit of not allowing several felonious acts to be given in evidence under one indictment, where, as will often be the case, the effect of so doing will be to create confusion, or to surprise the prisoner, or otherwise embarrass the defence. But here embarrassment and injustice would be produced by putting the prosecutors to their election. They cannot possibly know at what time the several larcenies and receivings (if more than one) took place; the whole, according to the opening, seems to constitute a continuous transaction."

11

( c) The practice of putting the prosecution to their election between charges relating to different acts or transactions, though generally followed in the case of felonies, was not normally applicable to misdemeanours, Young v. R. (supra), R. v. Jones (supra), R. v. Castro (supra). But in R....

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