R v Smith (Roger) ; Haughton v Smith

JurisdictionEngland & Wales
JudgeTHE LORD CHIEF JUSTICE
Judgment Date30 March 1973
Judgment citation (vLex)[1973] EWCA Crim J0330-1
Docket NumberNo. 5417/B/72
CourtCourt of Appeal (Criminal Division)
Date30 March 1973
Regina
and
Roger Daniel Smith

[1973] EWCA Crim J0330-1

Before:-

The Lord Chief Justice of England (Lord Widgery)

Lord Justice James

and

Mr. Justice Nield

No. 5417/B/72

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

MR. B. HYTNER, Q.C. and MR. J. BRIGGS appeared as Counsel for the Appellant.

MR. W. G. O. MORGAN, Q.C. and MR. J. MORGAN appeared as Counsel for the Crown.

1

THE LORD CHIEF JUSTICE
2

On the 28th September last year at the Liverpool Crown Court this Appellant was convicted of attempted handling of stolen goods. It is perhaps as well to read the terms of the count in the indictment. The particulars of the offence were "On or about the 28th day of September 1971, in the County of Hertford, dishonestly attempted to assist in the disposal by or for the benefit of Alan Christopher Dixon, George James Mooney, Paul John Maeder and other persons unknown of 890 cartons of corned beef, the property of Arbuckle Smith 8c Co., Ltd., knowing or believing the same to have been stolen." The essence of it was dishonestly attempting to assist in the disposal of those goods. He was convicted on that count and sentenced to 12 months' imprisonment. There was another count in the indictment charging conspiracy, arising out of the same circumstances, but the Jury were directed to return a verdict of not guilty on that count.

3

What had happened was this. On the 18th September 1971 there was a burglary at a warehouse in Liverpool, and a very large quantity of corned beef in cartons was stolen. Ten days later, on the 28th September two police officers on duty at night saw a large van proceeding down a main road near Sutton Coldfield, and their attention was directed to it because it was obviously overloaded, or had a load which had shifted, in other words it was all down on one side. They stopped the vehicle, the driver was a man called Dixon; he had a man named Nicholson with him. The van was loaded with cartons of corned beef, and for the purposes of this Judgment I shall state the facts as the Jury must have found them to be, and the Jury clearly accepted that the cartons of corned beef in this van were part of the proceeds of the theft in Liverpool ten days before.

4

The van and the two men in it were taken along by the police officers to Sutton Coldfield Police Station. There was a brief conference between the police officers and members of the Regional Crime Squad, The upshot of it was that it was decided to let this van go on its way to London with the police keeping an eye on it with a view to catching some of the other people who were concerned in the theft and disposal of these goods. So after what was really quite a brief interval, the van set off for London; it had two police officers on board and was trailed by other police officers in a car. They got to the London end of the M1 motorway at about seven o'clock at the Scratchwood Service Area, as it is called, because this was the place where Dixon, the driver of the vehicle, told the police that he was to rendezvous with those who were to take the corned beef on. At the Scratchwood Service Area there were a number of people, including the present Appellant Smith, who were obviously there to receive this vehicle, and who were responsible for the transfer of the goods to other vehicles and the ultimate distribution of the goods to the ultimate receivers. I take the matter quite briefly, and I do not consider further the fact that many of these facts were disputed in the trial. It suffices for present purposes to say that in view of the Jurys verdict, one can regard Smith as being one, if not the leader, of a party waiting at the Scratchwood Service Area for this van with a view to disposing of the contents.

5

It is clear that not only were they there for that purpose, but that when the van arrived Smith took a leading part in making arrangements for the future disposal of the goods. There were such troubles as a burst tyre and things of that kind, and he evidently was taking a leading part in seeing that the goods were made mobile again and went on to their ultimate destination. In the end the police officers made their identity known, and Smith was eventually arrested.

6

The reason why he was not charged with handling stolen goods was a perfectly simple one, namely that by the time the vehicle got to Scratchwood Service Area and Smith began to take an active part in the affair, the corned beef was, as a matter of law, no longer stolen goods. The reason is that by Section 24 subsection (3) of the Theft Act 1968, which deals with certain offences relating to stolen goods, there is this provision: "But no goods shall be regarded as having continued to be stolen goods after the have been restored to the person from whom they were stolen or to other lawful possession of custody, or after that person and any other person claiming through him have otherv/ise ceased as regards these goods to have any right to restitution in respect of the theft". So in brief, as a matter of law, although the goods were undoubtedly stolen goods when they left the Liverpool warehouse, they ceased to be stolen goods as soon as the police got hold of them at Sutton Coldfield, and they were then restored to lawful custody. Consequently when Smith began to perform his functions at the Scratchwood Service Area, the goods with which he was dealing, totally unknown to him, were not stolen goods at all. Accordingly there could be no question of charging him with handling stolen goods. Instead he was charged with attempting to handle stolen goods, and this is another case in which the Court has to consider whether a person can be said to commit the offence of attempting to commit a criminal offence, if the offence itself is not capable of being committed by reason of circumstances unknown to the accused. The fact that an attempt is charged means, of course, that the Prosecution are not able or minded to try and prove the full offence. It goes without saying that a man is not to be charged with or convicted of an attempt except on the basis that he has not gone the whole distance and actually committed the full offence itself.

7

Attempts arising out of a failure on the part of the accused to complete the full offence usually fall into two main classes, The first class is the type of case where the accused has embarked on a course of conduct which, if completed, will result in an offence but for some reason breaks off that course of conduct and never completes the action required to amount to the offence. There are dozens of examples of which one can think of attempts which come into that class: the pickpocket who puts his hand in a man's pocket only to find it empty; the burglar who is disturbed by the police when he is in the process of trying to break open the window; the safebreaker who finds when he gets to the safe, it is too difficult for him and he cannot open it. These are all people who have set out on a course of conduct which if completed in accordance with their intention would have amounted to a criminal offence, but who have desisted for one reason or another before the full course of criminality has been pursued.

8

In general, and I emphasise that this Court is only concerned to deal with those cases in generality, a charge of attempt can properly be laid in that type of case. It matters not that the accused might never have completed the major offence in any event.

9

But the second class of case is the one into which the present facts fall. The second class of case where attempt is sought to be charged is where the accused has meticulously and in detail followed every step of his intended course believing throughout that he was committing a criminal offence and when in the end it is found he has not committed a criminal offence because in law that which he planned and carried out does not amount to a criminal offence at all. That is this case, and the question whether in such circumstances the accused can properly be charged with an attempt is on the authorities a very much more difficult one, and indeed the questions raised are questions which have been canvassed in New Zealand and the United States of America as well as in the Courts of this country.

10

I think one can conveniently start with the modern cases and not take too long going through the earlier authorities of which Counsels' industry has reminded us of this morning. I approach this question first of all by looking at the case of Percy Dalton (London) Limited which is reported in volume 33 Criminal Appeal Reports at page 102. This is an immediate post-war case when there were still controlled prices or maximum permitted prices for the sale of various commodities. The accused in the Percy Dalton case were charged with having sold pears at a price in excess of the current permitted price for pears. It seems fairly clear that the accused thought that they were breaking the law in other words that they knew the maximum price and thought that they were charging a price in excess; but when the case was heard out to its end and the details were examined, it was found that in fact they had not exceeded the maximum price and that therefore an offence of breach of the appropriate regulation had not been made out. The question then arose as to whether it was possible to charge them with attempting to commit the offence of selling in excess of the maximum price. The Court held that it was not, and -there is a passage on page 110 which this Court finds of particular value, and which indeed has been approved on other occasions in this Court also. It appears in the Judgment of the Court given by Mr. Justice Birkett, and it is in these terms: "All the acts of the company" - the defendant in that case - "have been considered...

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