R v Withers
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Viscount Dilhorne,Lord Diplock,Lord Simon of Glaisdale,Lord Kilbrandon |
| Judgment Date | 20 November 1974 |
| Judgment citation (vLex) | [1974] UKHL J1120-1 |
| Date | 20 November 1974 |
| Court | House of Lords |
[1974] UKHL J1120-1
House of Lords
Lord Reid
Viscount Dilhorne
Lord Diplock
Lord Simon of Glaisdale
Lord Kilbrandon
Upon Report from the Appellate Committee, to whom was referred the Cause Director of Public Prosecutions against Withers and others (on Appeal from the Court of Appeal (Criminal Division)), That the Committee had heard Counsel, as well on Wednesday the 5th, as on Thursday the 6th, Monday the 10th, Tuesday the 11th and Wednesday the 12th days, of June last, as also upon Tuesday the 9th day of July last, upon the Petition and Appeal of Ian Douglas Withers of 22 Rosemary Drive, Southmede, Shoreham, Sussex, Stuart Robert Withers of 8 Bay Tree Close, Southmede, aforesaid. Phyllis May Withers (née Clarke) of 22 Rosemary Drive, aforesaid (the wife of Ian Douglas Withers) and Heleti Withers (née Gearing) of Bay Tree Close, aforesaid (the wife of Stuart Robert Withers), praying, That the matter of the Orders set forth in the Schedule thereto, namely. Orders of Her Majesty's Court of Appeal (Criminal Division) of the 19th of October 1973, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen in Her Court of Parliament, and that the said Orders, so far as aforesaid, might be reversed, varied or altered, or that the Petitioners 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 Director of Public Prosecutions, 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 Orders of Her Majesty's Court of Appeal (Criminal Division), of the 19th day of October 1973, in part complained of in the said Appeal, be, and the same are hereby, Set Aside, and that the convictions imposed on the Appellants Ian Douglas Withers, Stuart Robert Withers and Helen Withers (née Gearing) on counts one and two, and the conviction imposed on the Appellant Phyllis May Withers (née Clarke) on count two, be, and the same are hereby. Quashed: And it is further Ordered, That the Costs incurred by the Appellants in the Courts below at such times as they were not covered by Legal Aid Certificates, and also the Costs incurred by them in respect of the said appeal to this House at such times as they were not covered by Legal Aid Certificates, be paid out of Central Funds pursuant to the Costs in Criminal Cases Act 1973, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby remitted back to the Court of Appeal (Criminal Division), to do therein as shall be just and consistent with this Judgment.
My Lords,
For the reason given by my noble and learned friend, Viscount Dilhorne, I would allow this appeal.
My Lords,
On the 9th February, 1973, Ian Douglas Withers, Stuart Robert Withers, Phyllis May Withers and Helen Withers were convicted at the Central Criminal Court on two counts of an indictment, each of which charged them with conspiracy to effect a public mischief. The particulars of this first count alleged that they had conspired to effect a public mischief by unlawfully obtaining private and confidential information from officials of certain banks and building societies by false representations that they and other persons in their employment or under their control were persons authorised to receive such information. The particulars of the second count alleged that they had conspired to effect a public mischief by obtaining such information from officers of certain departments of Government and local government by such representations.
Ian and Stuart Withers ran an investigation agency, first under the name of Christopher Robert & Co. and later called the London Investigation Agency. Phyllis Withers, the wife of Ian, and Helen Withers, the wife of Stuart, worked in the agency.
It was not disputed that information was obtained about a bank's customers by deceit. A telephone call would be made to the bank at which the customer being investigated had an account, usually at lunchtime when the manager and deputy manager would be expected to be out. A code book was used and the person making the call would pretend to be an officer of another bank. If the bank had to ring back, it was given the telephone number of the agency and an extension number which depended on to which bank the call had been made. If, for instance, the call had been made to Barclays Bank and they had to ring back, they would be told to ask for extension number one and the person in the agency answering the telephone would say "Barclays".
In this way the Appellants obtained confidential information from banks about their customers' accounts; information that might be used to the customers' detriment; and information which they sold to those who employed them. Information was also obtained from a building society as to the account of a customer by deception.
The case for the prosecution in relation to the second count depended on proof that information which ought not to have been supplied to the Appellants was obtained from the Criminal Record Office and on one occasion from the Ministry of Defence, and also by representing that the enquiry came from another licensing authority, information was obtained as to the name and address of the owner of a registered vehicle. This information could lawfully be given if there was a reasonable cause for the request on payment of a fee of 25p. The Appellants by the use of deceit were able to obtain the information they required more speedily than they would otherwise have done and without the payment of any fee. By deception information was also obtained about driving licences.
The prosecution's case was that proof that information had been so obtained sufficed to establish not one but two conspiracies to effect a public mischief, not one agreement to which all the accused were parties, but two. There was not, so far as I am aware, any evidence which pointed to the existence of two separate agreements and I presume the reason why two counts for conspiracy were preferred was doubt whether the particulars of one or other of the two counts sufficed to establish such a conspiracy.
The Appellants appealed unsuccessfully to the Court of Appeal against their conviction on both counts. They now appeal with the leave of this House, the Court of Appeal having certified that the following point of law of general public importance was involved in its decision, namely,
"Whether the learned judge was right in law in stating that if the jury were sure that one of the defendants agreed with another defendant to do wilfully deceitful acts themselves, or agreed to procure others to do such wilfully deceitful acts for them, and that such wilfully deceitful acts would cause extreme injury to the general well-being of the community as a whole such persons who so agreed would be guilty of the offence of conspiring to effect a public mischief."
The ingredients of the crime of conspiracy have been judicially considered on many occasions and very recently in R. v. Kamara [1974] A.C. 104. A criminal conspiracy may take many forms and it has long been customary to attach labels to different categories of conspiracy but whatever the label, there is only one offence, conspiracy.
In his well-known work "Law of Criminal Conspiracies and Agreements" (1873) R. S. Wright listed "certain heads or kinds of subject-matter under which", he said, "they appear to have arranged themselves as they occur." His list includes conspiracy to do criminal acts, combinations against Government, conspiracies to pervert or defeat justice, conspiracies against public morals and decency, combinations to injure individuals (otherwise than by fraud), and combinations relating to trade and labour.
Archbold's Criminal Law 22nd Ed. (1900) at p. 1209 classified conspiracies under the following heads: conspiracy to cheat and defraud, conspiracy to injure individuals by wrongful acts otherwise than by fraud, conspiracy to prevent, obstruct, pervert or defeat justice, and conspiracy or combinations affecting trade. In this edition conspiracies to do acts against public morals or decency were treated as coming under the heading of conspiracies to commit offences punishable by law.
It is to be observed that neither in the list compiled by R. S. Wright nor in the list in the 1900 edition of Archbold is there any reference to conspiracies to effect a public mischief. In R. v. Kamara (supra) my noble and learned friend, Lord Hailsham of St. Marylebone, cited a number of cases which he said were "examples of conspiracy to effect a public mischief, usually by fraud". As Viscount Simonds pointed out in Shaw v. Director of Public Prosecutions [1962] A.C. 220 at p. 267, it matters not which label is attached. Some might give a conspiracy one label, others another, and indeed few, if any, conspiracies could not properly be described as conspiracies to effect a public mischief. Many of the cases cited by my noble and learned friend might well be classified as conspiracies to defraud and others of them as coming under one or other of the other well recognised heads.
The question which has to be considered is not whether to attach the label of conspiracy to effect a public mischief is an apt or inapt description of the conspiracy but whether conspiracies with that object and which do not come under one of the other heads form a separate class, recognised by the law.
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