R v Wilson (David); R v Marshall-Graham
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 19 January 1967 |
| Judgment citation (vLex) | [1967] EWCA Crim J0119-4 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 1334/66 |
| Date | 19 January 1967 |
[1967] EWCA Crim J0119-4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Parker)
Lord Justice Winn
and
Mr. Justice Willis
No. 1334/66
No. 1384/66
MR. L. BOREHAM. Q.C., and MR. PETRE appeared as Counsel for the Appellant, Wilson.
MR. LEWIS HAWSER. Q.C., and MRS. PUXON appeared as Counsel for the The Appellant, Marshall-Graham.
MR. MICHAEL HAVERS. Q.C., and MR. JOHN MARRIAGE appeared as Counsel for the Crown.
These two Appellants were convicted at Norfolk Assizes in April, 1966 of breaking into a country house during the night of November 8th and stealing guns, silver snuff and tobacco boxes and other articles to a very considerable value, something over £10,500, and each was sentenced to six years' imprisonment. It is against their conviction and sentence that they now appeal to this Court.
The facts here need not be gone into in any great detail, nor does the Court propose to give an exhaustive view on the law applicable to the real point which has been raised in the case. Had they desired to do so, they would undoubted-ly have put their reasons into writing. But having formed a clear and simple view of this case, the Court will now give judgment.
One Captain Birkbeck was the owner of High House, Westacre, which was undoubtedly broken into on the night of the 8th/9th November, 1965. A showcase had been forced with secateurs, which were subsequently found outside the back door, and this property was stolen. The very next day one of these boxes was undoubtedly sold by the Appellant Marshall-Graham to a firm in Old Bond Street. On the 24th November an A.A. man found in a lay-by near a place called Kentford, which was on the Bury/Newmarket Road, a sack which contained the guns and no less than 34 of the boxes. Police inquiries of course were started at once, but the Police not having been able to trace the criminals or recover any more of the boxes, Captain Birkbeck on the 10th December himself decided to see what he could do.
May I say at once that the Court sympathises with Captain Birkbeck, but at the same time thoroughly disapproves of the exceedingly dubious transaction that thereafter he took part in. He knew that a man called Wilson had on the 30th October acted as a chef and his wife as a waitress at a dance which Captain Birkbeck had given for his daughter in his house, and he decided to trace Wilson if he could. Eventually he did trace him to a flat in Hunstanton. Undoubt-edly a conversation took place between Captain Birkbeck and Wilson and Mrs. Wilson, in the course of which he conveyed that he was concerned to get his property back and offered a reward for information. He said that he wanted information and he was prepared to pay some £300 for it. I will come back in a moment to other matters which took part at the outset.
According to Captain Birkbeck, Wilson immediately said "I have got your boxes, you may have them for £500, but first I must have the money". Wilson at some period left the room and rang up Marshall-Graham. No doubt the idea was to tell Marshall-Graham what was happening, and to ask him to have the boxes available. That same evening, as an earnest of his intention, he took Captain Birkbeck down to a place called Heasham where, out of an old glove hidden near-by, one of the boxes was produced and handed over to Captain Birkbeck. The next day Wilson and his wife and Captain Birkbeck set off by car to Newmarket, and on the way, according to Captain Birkbeck, and this was to a very large extent admitted by Wilson, a conversation took place in which Wilson in detail explained how he and what he called his partner had in fact broken into Captain Birkbeck's house on that night, giving full details of how it had been done and how they had stolen this property.
They went in the first place to Tempsford Cafe and continued to a public house called "Wait for the Wagon"; and a time came when - I am taking this quite shortly - the Appellant Marshall-Graham arrived in a car with 20 of these boxes, handed them to Wilson, who in turn brought them in and handed them to Captain Birkbeck. They then all went off to a bank at St. Neots where in due course a cheque was made out by Captain Birkbeck to a fictitious payee and handed to Wilson, the cheque being for £300. The reason why only £300 was handed over was that there were still boxes missing, and wilson promised that if Captain Birkbeck called at his flat the following Monday, he would have the remaining boxes available, when Captain Birkbeck would pay the balance of £200. In fact Captain Birkbeck went to the flat on the Monday morning and found pinned to the door an envelope on which was written "Coming back on Wednesday". Finally, no message having been obtained by the Wednesday and Wilson having vanished, Captain Birkbeck went to the Police. Later on he called on Marshall-Graham and told Marshall-Graham that Wilson had let him down, and in turn asked Marshall-Graham whether he would let him have information with regard to the missing pro-perty for a £200 reward.
As a result of that Marshall-Graham admitted having handed over the other boxes to Wilson at the public house, and said that he had previously been given them by Wilson to look after. In fact not only did Marshall-Graham sell one of these boxes the very next day after the burglary as I have already said, to a firm in New Bond Street, but Wilson had come to London and sold another box in Chelsea. That likewise, has been recovered, and we are told that in effect Captain Birkbeck has recovered almost all of the property stolen.
At the trial objection was taken to oral statements made by both these prisoners to Captain Birkbeck, the objection being based on the well-known principle stated by Lord Sumner in Ibrahim's case reported in 1914 Appeal Cases page 599. It is I think only necessary to refer to this case on the general principle; it is to be found in a passage on page 609, a passage which only recently has been affirmed by the House of Lords in the case of Commissioners of Customs and Excise v. Hartz. Lord Sumner there said: "It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him...
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