“WHICH OF YOU DID IT?”
| Date | 01 March 1989 |
| Published date | 01 March 1989 |
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02816.x |
| Author | Glanville Williams |
“WHICH
OF
YOU
DID
IT?”
SOMETIMES
one person of a pair, or one of a group, must have
offended, but
it
is impossible to establish which
it
was. Each of the
suspects may put the blame on another. Or each may try to protect
both himself and others by remaining mum. This course is quite
likely to frustrate
the
prosecution. The police may have a strong
suspicion of one of the bunch
in
particular, but failing a reasonable
prospect of getting
a
conviction there
is
doubtfully any point in
bringing proceedings.
Of
course, charges based on strong suspicion sometimes succeed.
A former
cause
ct?ft?bre
on the subject, known to generations of
students of Kenny’s
Cases,
was
Manning
(1849).’
The facts
contained
all
the
ingredients of melodrama. A customs officer was
murdered
in
the Mannings’ house, where
he
had been invited
to
dinner. He was Mrs Manning’s paramour. His dead body was
buried under the kitchen floor, and husband and
wife
then fled
from London. The murder must have been committed by either
one
or
the other or both, and both were charged. Counsel for the
man suggested that
the
woman alone committed
the
murder, her
object being robbery. Counsel for
the
woman suggested that the
crime had been committed by the man alone,
in
a paroxysm of
jealousy. Pollock L.C.B. directed the jury to consider whether,
seeing that the murder was committed
in
the
house where both
prisoners lived,
it
could possibly have been undertaken by the one
without the knowledge of the other. Both defendants were
convicted and hanged.
At that time, the courts laboured under the self-imposed handicap
that defendants could not give evidence and be cross-examined
on
oath. They still labour under the self-imposed handicap that
generally no inferences are supposed
to
be drawn from the
defendant’s refusal to give evidence. Even
if
this
general principle
were reversed, there would be obvious difficulties
in
drawing
inferences from the refusal of spouses to give evidence against each
other.
No
doubt
the
verdict against the Mannings accorded with
common sense. Had their ploy succeeded, it would have revealed
an alarming method of committing murder without punishment.
Many other couples would be glad to know of a way of eliminating
inconvenient people without legal
risk.
But could
it
be said that
both the hypotheses offered by counsel were contra-indicated
beyond reasonable doubt? Supposing that the husband was the
perpetrator (the more likely of the pair, one would think), and
supposing further that
the
wife helped him to dispose of the body;
’
The
Times
Octobcr
21,
1849;
scc thc summary
in
Kcnny’s
Cares,
takcn ovcr
in
179
Turncr
and
Armitagc,
Cares
on
Crirnblal
Law,
(3rd cd.)
1164.
180
THE
MODERN
LAW
REVIEW
[Vol.
52
this perhaps made her an accessory after the fact, but accessories
after were not subject to the death penalty. A similar remark
applies,
mutatis
mutandis,
if
it was the wife who did the deed.
Their flight together showed only the loyalty of husband and wife
to each other, not that they were both involved in the murder.
As
to the Lord Chief Baron’s direction, the fact that one spouse
witnessed the other commit a murder did not prove that the
witnessing spouse either joined
in
committing it
or
encouraged it.
In cases
of
this kind the authorities may think it worth prosecuting
in the hope
of
getting a conviction even without rationally
conclusive evidence, as in
Manning,
or
else in the hope that the
defendant will not risk relying on his right
of
silence and will break
down under cross-examination,
or
(if the charge is a minor one)
that he will be sufficiently fearful of the penalties for perjury to
plead guilty. These calculations may be disappointed. However,
the courts have invented certain rules for assisting the process
of
justice.
THE
DOCTRINE
OF
AUTHORITY
TO
CONTROL
It not uncommonly happens that two men, the worse for drink,
are found standing by a car which
one
of
them has driven, the
other being a passenger. The police may breathalyse both2 and find
that they are both over the limit, but still cannot successfully
prosecute, on ordinary principles, unless they can establish which
of
the men drove
or
was in charge
of
the car,
or
unless it can be
established that whichever
of
the pair was driving, the other
knowingly encouraged him.
A
way out
of
the difficulty was found
in
the early days of
motoring. In
Du
Cros
v.
Lambourne
(1907),3
the facts were that
Du Cros, the proud owner
of
a Mercedes, had arranged a jaunt.
He sat in the front with a lady friend; two others sat in the back.
Someone drove the car at the outrageous speed
of
50
m.p.h. When
the police took notice
of
the matter there was a sharp conflict of
evidence, all the occupants
of
the car saying that it was the lady
who was driving, while outside spectators were positive that Du
Cros was. The courts improvised a solution by impaling Du
Cros
on a metaphorical fork. Either he was driving
or
he had become
an accomplice by failing to exercise the control over the driver that
he, as an owner, could have exercised.
An owner who
is
not sitting in the car is not
a
special target
of
the law (he is presumably not implicated
if
he lends his car to a
person whom he knows to be a careless dri~er);~ neither is a
passenger in most instances; but a person who
is
both an owner
and a passenger can be convicted.
~ ~~
Pearson
v.
Conir
of
Police, The
Times,
Junc
29, 1987.
’
(1907)
1
K.B.
40.
‘
Tuck
v.
Robsoti
(1970)
I
W.L.R. 741 at p.764A;
1
All E.R. 1171
at
p.1174h;
Lanham
in
(19823 Crim.L.R. 425-426.
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