R v Whitehouse
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCARMAN |
| Judgment Date | 18 February 1977 |
| Judgment citation (vLex) | [1977] EWCA Crim J0218-1 |
| Docket Number | No. 4676 A/76 |
| Court | Court of Appeal (Criminal Division) |
| Date | 18 February 1977 |
[1977] EWCA Crim J0218-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Scarman
Lord Justice Geoffrey Lane
and
Mr. Justice Donaldson
No. 4676 A/76
MR. P. STRETTON appeared on behalf of the Appellant.
MR. F.M. DRAKE, Q.C. and MR. M. ELSOM appeared on behalf of the Crown.
(As revised by Judge)
On 16th August, 1976, at Stafford Crown Court, Arthur Whitehouse pleaded guilty to two offences of incitement to commit incest, and was sentenced to two years' imprisonment concurrent on each count. He further admitted being in breach of suspended sentences of imprisonment imposed at Stafford Crown Court on 25th April, 1975 when for one offence of incitement to commit gross indecency, contrary to Section 1 of the Indecency With Children Act, 1960, and for three offences of incitement to commit incest he was sentenced to 15 months' imprisonment concurrent on each count, suspended for two years. These suspended sentences were brought into operation and ordered to run consecutive to the sentences passed upon him at Stafford on 16th August.
He applied for leave to appeal against sentence to the single Judge who granted him leave, and who observed for the attention of the full Court that he thought the sentence was markedly excessive. There was no sexual intercourse, nor any attempt to have sexual intercourse. The offences alleged were confined to words of importuning, which the girl rejected.
When the appeal against sentence came before this Court, it occurred to us that it was possible that he had been sentenced in August, 1976 for offences unknown to the law, and a little further reflection indicated that, should that be right, he might well have been sentenced for three offences unknown to the law when he pleaded guilty to four offences at Stafford in April, 1975. In order that the matter might be properly and fully considered, we gave Mr. Stretton, who was appearing for the Appellant on the appeal against sentence, leave to apply out of time for leave to appeal against conviction, not only in 1976 but in 1975, of the offences of incitement to commit incest. We now therefore have before us these applications for leave to appeal against conviction, and the Crown has been represented upon the applications by Mr. Drake, Q.C. and Mr. Elsom, andwe have heard submissions not only by the Applicant but also by the Crown.
We have decided to give leave to appeal against the 1976 convictions, and against those convictions in 1975 which related to the offences of incitement to commit incest.
I pause at this stage to make a formal invitation to Counsel. Mr. Stretton, do you wish to add anything further on the substantive appeal to the argument you have addressed on the applications?
No, my Lord.
Mr. Elsom, does the Crown?
MR. ELSOM: No, my Lord.
I am very much obliged. We now therefore proceed to consider upon its merits the appeal against the convictions to which I have referred. The indictment which the/Appellant faced in 1976 was an indictment charging him with incitement to commit incest, and the particulars of the offence charged were as follows:- that Arthur Whitehouse, on a date unknown between 1st December, 1975 and 10th February, 1976, unlawfully incited Kathleen Ann Whitehouse, a girl then aged 15, who was to his and her knowledge his daughter, to have sexual intercourse with him. To that count he pleaded guilty, as also to a second count charging incitement to commit incest, but on a different occasion, and he pleaded guilty to that as well.
When the Court saw those two counts framed in the way I have just described, we queried whether it was an offence known to law and we doubted whether it was because a girl aged 15 is incapable of committing the crime of incest. Later in this judgment it will be necessary to look at the terms of Section 11 of the Sexual Offences Act, 1956, but that shortly is the effect of the section so far as material to the issue in this case.
Nevertheless, in the face of his plea of guilty, we have to ask ourselves whether this Court has jurisdiction to entertain an appeal against conviction, and one has to have regard to the decision of the House of Lords in the case of Shannon which is reported in 1975 Appeal Cases at page 717. I need only read the relevant part of the headnote of that well known case. It is the second holding which appears at the top of page 718: The House of Lords held "that in the circumstances the respondent's conviction could only be quashed on appeal if one of the conditions prescribed by Section 2(1) of the Criminal Appeal Act, 1968 were satisfied: accordingly" the headnote continues "the respondent having pleaded guilty there was only power to quash the conviction if either there had been a wrong decision on a question of law or a material irregularity in the course of the trial." We therefore may allow this appeal only if it can be properly said that there was a wrong decision of law or a material irregularity in the course of the trial. If it be correct that there is no offence known to the law as charged, it would be a wrong decision of law for the Judge to accept a plea of guilty; and a fortiori it would be wrong for the Judge to allow the matter to proceed to judgment. The point has been succinctly put by Lord Justice Salmon in R. v. Rollafson, reported in 1969 1 WLR page 815, and I quote one sentence from his judgment at page 816. The learned Lord Justice there said "The fact that he pleaded guilty is no bar to this appeal providing that it would have been impossible for him to have been lawfully convicted of this offence." We have come to the conclusion that we have jurisdiction and we note that Counsel for the Crown in the course of a very helpful submission did not think fit to contend otherwise. The way in which jurisdiction arises can be put in terms of the Criminal Appeal Act, 1968 as follows. A person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction: Section 1(1) of the Act. When a man pleads guilty, there is a conviction; it is not a conviction after trial, it is a conviction upon confession; but, as long as that conviction is upon the record, this Court has jurisdiction, subject to the provisions of the Act, to entertain an appeal against it. The effect of Shannon is that, when there is an appeal against a conviction founded upon a confession, the duty of this Court to allow the appeal can only arise if one or other of the requirements of Section 2 are met. Amongst the requirements of that section are the two to which I have already briefly referred, a wrong decision of any question of law or a material irregularity in the course of the trial.
We have reached the conclusion that if the Appellant's submission is correct there was, on the grounds I have already mentioned, a wrong decision of law. Therefore in our judgment we have jurisdiction to entertain this appeal and we have a situation in which it is being submitted on behalf of the Appellant that there was a wrong decision of law by the Judge at the court of trial.
We turn now to consider whether the indictment disclosed an offence known to the law. The count standing by itself does disclose such an offence because the count merely alleges incitement to commit incest. But when one goes on to the particulars one sees that the accused man is charged with inciting his daughter, a girl aged 15, to commit incest with him. The Crown recognises that there are difficulties in the drafting of the indictment. The Crown recognises that under Section 11 of the Sexual Offences Act, 1956 a girl aged 15 cannot commit incest. The relevant subsection is (1) and I read it: "It is an offence for a woman of the age of 16 or over to permit a man whom she knows to be her father to have sexual intercourse with her by her consent." It is of course accepted by the Crown that at common law the crime of incitement consists of inciting another person to commit a crime. When one looks at this indictment in the light of the particulars of the offence pleaded, one sees that it is charging the accused man with inciting a girl to commit a crime which in fact by statute she is incapable of committing. If therefore the girl was incapable of committing the crime alleged, how can the accused be guilty of the common law crime of incitement? The Crown accepts the logic of that position and does not seek in this Court to rely on Section 11 of the Act of 1956 or to suggest that this man could be guilty of inciting his daughter to commit incest, to use the old phrase, as a principal in the first degree. But the Crown says that it is open to them upon this indictment to submit that it covers the offence of inciting the girl to aid and abet the man to commit the crime of incest upon her. Section 10 of the 1956 Act makes it an offence for a man to have sexual intercourse with a woman whom he knows to be his daughter, and the Crown says that...
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Notes of Cases
...also Smith and Hogan, Criminal Lcnv (3rd. ed., 1973), pp. 240-241. 24 [1975] 2 All E.R. 347. 54, p. 21. 23 119751 2 All E.R. 347. 1 [1977] 2 W.L.R. 925. VOL 414q 4 (11 726 THE MODERN LAW REVIEW [Vol. 41 principle that, for the purpose of incitement, it must be established not only that the ......