R v Walters

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeTHE LORD CHIEF JUSTICE
Judgment Date27 February 1979
Judgment citation (vLex)[1979] EWCA Crim J0227-15
Docket NumberNo. 3467/A/78 No. 3583/A/78 No. 3584/A/78
Date27 February 1979

[1979] EWCA Crim J0227-15

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Before:

The Lord Chief Justice of England (Lord Widgery)

Lord Justice Cumming-Bruce

and

Mr. Justice Neill

No. 3467/A/78

No. 3489/A/78

No. 3583/A/78

No. 3584/A/78

Regina
and
Brian George Tovey
Terence Walters
David Albert Padfield
and
Colin John Padfield

MR. P.A. JONES appeared on behalf of the Applicant Tovey.

MR. H. APLIN appeared on behalf of the Applicant Walters.

MR. GRAHAM JONES appeared on behalf of the Applicants David and Colin Padfield.

MR. D. HAWKINS appeared on behalf of the Crown.

THE LORD CHIEF JUSTICE
1

On the 7th June, 1978 at the crown court at Gloucester these four Applicants, as they appear on applications for leave to appeal against conviction, were convicted, amongst other things, of an offence under count 1 of an indictment described as a conspiracy to defraud, contrary to common law. There were other counts and other matters, but I find it unnecessary to refer to them because such importance as there is in this case is to be discovered by looking at it straight down the middle.

2

What had happened was that the Applicants had begun, but really only just begun, what promised to be a fairly substantial campaign of fraud. As usual, one does not give the particular details of individual cases lest they be more readily copied in that way. It suffices for present purposes to say that someone – probably the older Padfield – hit upon the idea that it was relatively easy to get motor cars on a self-drive hire basis and then, if desired, to take them to a garage and sell them. What might have been a brisk business of this kind was nipped in the bud, either by the good fortune of the authorities or through police work; we do not know which. In the result, they stood their trial, as I have said, and all (with the exception of a co-defendant named Peach who does not apply for leave to appeal), seeking leave to appeal, have relied amongst other things upon a common argument on count 1, which, as I have said, runs right down the middle of the case.

3

The points arising on count 1 are these. First of all, the indictment itself was in these terms. I have read them once, but they are important and I will read them again: "First Count Statement of offence Conspiracy to defraud contrary to common law." Then the five names are given, and it is said "on divers dates between the 1st day of July and the 30th day of November, 1977 in the counties of Avon and Gloucester conspired together and with Christine Dorothy McMiller and with other persons unknown by means of false documents to induce the owners of motor cars to part with possession thereof and to obtain possession of motor cars by theft and other dishonest means and to induce persons purporting to purchase such cars to part with money or moneys worth therefor."

4

There has been considerable debate amongst those who are closely concerned with these things as to how a conspiracy, be it a conspiracy to steal or a conspiracy to defraud, should be charged at the present time having regard to the provisions of the Criminal Law Act, 1977.

5

Section 1(1) of that Act provides as follows: "Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement if the agreement is carried out in accordance with their intentions, he is guilty of conspiracy to commit the offence or offences in question." For want of a better title, an offence under that subsection is called a conspiracy by virtue of section 1(1) of the statute.

6

Section 5(1) is important also. It provides: "Subject to the following provisions of this section, the offence of conspiracy at common law is hereby abolished."

7

If one read no further than that, it would look as though the only surviving offence of conspiracy is that described in section 1. Not so, because section 5(2) provides: "Subsection (1) above shall not affect the offence of conspiracy at common law so far as relates to conspiracy to defraud, and section 1 above shall not apply in any case where the agreement in question amounts to a conspiracy to defraud at common law."

8

It has been sought to argue before us today that in the circumstances of the instant case the offence of conspiracy, if there was one at all, is an offence which should be charged under section 1(1) and not under section 5.

9

We are not going to lay down any final conclusions about this case. When a new point of this kind has to be developed, it is better if it is developed slowly. We shall look at the circumstances of this case and see how the statutory provisions work out in relation to it.

10

To begin with, the indictment, as I have said more than once, charged the offence of being at common law and a conspiracy to defraud. There was evidence of such in the evidence before the learned judge and the jury. Moreover, there is no attempt on the part of Counsel to criticise the learned judge's approach in his direction to the jury in this respect.

11

Thus, we have this. We have an offence known to the law charged in the indictment, known to the law because section 5 keeps it alive. We have, secondly, some evidence fit to go to the jury to show the commission of that offence. We have, thirdly, that the jury brought back a verdict of guilty without bringing back also, as it were, a criticism of the judge's direction to them. In those circumstances one has all the essentials for a conviction. A conviction having been entered, there is nothing more for this court to do in this case on this day.

12

One can note as an interested spectator in passing that Mr. Justice Drake had similar matters to decide sitting as a judge at first instance in October...

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27 cases
  • R v Duncalf
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    • Court of Appeal (Criminal Division)
    • May 2, 1979
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  • R v Tonner
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • June 28, 1984
    ...1 above shall not apply in any case where the agreement in question amounts to a conspiracy to defraud at common law." 16 The appeal of Walters, (1979) Cr. App. R. 115, approving as it did a ruling in Quinn, (1978) Cr. Law R. 750, and Duncalf, (1979) 1 WLR 918, produced in this Court ......
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1 books & journal articles
  • The Common Enterprise Exception to the Hearsay Rule
    • United Kingdom
    • International Journal of Evidence & Proof, The Nbr. 11-2, May 2007
    • May 1, 2007
    ...expectation would be that evidence which is admissible for theprosecution would also be admissible for a co-accused.58 RvWalters (1979) 69 Cr App R 115 at 121, CA; more recently in RvWilliams [2002] EWCA Crim 2208.59 HM Advocate vDoherty 1980 SLT (Notes) 33.60 For admissibility of documents......

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