• Criminal Law and Procedure — Criminal record of defendant — Multiple-count indictment — Shield lost in relation to one count — Whether shield lost in relation to all counts — Criminal Procedure Ordinance (Cap 221) s 54(1)(f)

[1994] 1 HKC 1 at 2

Raymond Tsui Wai Nam

• Crime – Evidence – Character – Nature of defence involving imputation against prosecutor – Discretion of judge to admit previous record – Whether discretion unfettered – Whether general rule limiting exercise against defence – Defendant’s refusal to admit or deny previous record – Whether tantamount to admission – No warning to jury that record not formally proved – Effect – Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36), s. 1 (f) (ii).

J. A. G.

General Sentencing Principles

• overview of sentencing approaches – R v Sargeant (1974) 60 Cr. App. R. 74 [useful quote: “被告人已經被關押…，已受過牢獄之苦，監獄鐵鎖鋃鐺之聲將永遠在被告耳邊縈繞，提醒他以後要生性做人，不再犯事” – “…It is his memory of the clanging of prison gates which is likely to keep him from crime in the future.”]
• wherever possible, avoid imposing deterrent sentence upon a first offender – Chan Chi Ming [2003] 3 HKLRD 654; HCMA 115/2003 (15 July 2003) [should have asked for CSO reports before giving sentence, citing Bokhary JA’s quote in AG v Ng Sai Man [1994] 1 HKC 151; CAAR 11/1993 (25 January 1994), at [15] – “if is not necessary to send a man to prison for very long it may well not necessary to send him to prison at all” – for the quote only, a deterrent sentence was actually justified in this case] – CAVEAT: Good character/first-time offending is no bar to a deterrent sentence should the circumstances demand it – Chan Mo Kong [1998] 1 HKLRD 678; HCMA 194/1998 (17 April 1998) – In R v Ng Tat Shing & Anor [1977-1979] HKC 71 it was noted that although the general rule may be that an accused person of clear record would not normally be given a deterrent sentence, there were exceptions in certain cases. The exceptions include trafficking in drugs, kidnapping and cases where there was an element of corruption.
• deterrence in personam or in rem? Hiroyuki Takeda [1998] 1 HKLRD 931 [“9. Where deterrence is the paramount consideration because of the particular facts or circumstances of the case, then a robust approach to sentencing is appropriate [per Li V-P in AG. v. TANG King-ming [1986] HKLR 211]. A deterrent sentence may be in personam or in rem. Normally if the circumstances that pertain to an offender are such that the court is of the opinion that it must be brought home to him that he is not to commit such offences again, for example, a repeat offender, a deterrent sentence in personam is proper. When an offence is, inter alia, so prevalent or is so serious within its class, and the court is of the opinion that those of like minds are to be strongly discouraged from committing the same or similar offences, then a deterrent sentence in rem is called for.”] – Law Haw Moon HCMA 1132/2001 (27 December 2001) [“6. … However, as a general rule, although it is not wrong in principle to pass a deterrent sentence in personam on a first offender, a deterrent sentence in rem on a first offender is generally wrong in principle, (see the case of HKSAR v. Hiroyuki Takeda [1998] HKCFI 152; [1998] 1 HKLRD 931). That case of course was dealing with quite a different offence, an offence of publishing obscene article but the principle remains the same.”]
• deterrence needed for persistent re-offending as a protection of the public – Chan Pui Chi [1999] 2 HKLRD 830
• deterrence – reoffenders – proportionality of the deterrent sentence – increase from the last sentence a factor of consideration – 黃華慰 [2018] HKCFI 2794, para. 15.
• mental illness – Chiu Peng Richard [2002] 1 HKLRD 185; [2002] 1 HKC 401; CACC 287/2001 (29 January 2002)
• deprivation of children’s care by reason of sentences – Chan Kin Chung & Anor [2002] HKCA 121; [2002] 4 HKC 314; CACC 299/2001 (5 September 2002) – survey of authorities – its basis on the balanced approach of sentencing; not residual merciful discretion
• prevalence – Bondzie [2016] Crim LR 591 – applications in Khalid [2017] EWCA Crim 592 (12 April 2017) or Ajayi & Anor [2017] EWCA Crim 1011 (13 July 2017) – in the local context, see also s. 27 of OSCO
• determining prevalence and the role of magistrates – 黃華慰 [2018] HKCFI 2794 [“13. 「濫收車資」是十分嚴重的問題 … 作為主任裁判官，羅裁判官必定瞭解區內的罪案趨勢。他當然有權判斷，哪些罪行需要打擊和嚴懲。”]
• protecting HK’s reputation – refer to research notes
• Sentencing Guidelines and the use of precedents – Lau Sau King (unrep., HCMA 701/2004, Lugar-Mawson J, 14 September 2004) [“14. It must be remembered that sentencing guidelines are the exception, not the rule. Where guidelines are laid down and principles established, this should be done by the collective wisdom of three judges in the Court of Appeal and announced as such. Further, the Court of Appeal emphasized in R v. Lou Wah Theam [1997] HKCA 118; [1997] 1 HKC 412, at page 415C, that: “Where this court intends to provide sentencing tariffs for any specific offence it makes it clear that the case is a guideline case.” 15. Most appellate judgments on sentencing, both of the Court of First Instance and the Court of Appeal, do no more than uphold, reduce, or increase a particular sentence. They are no more than examples of how a particular court has dealt with a particular offender in relation to the particular circumstances of his offence. They are not intended to provide guidance for the future. They are certainly not authorities, let alone binding precedents, and they should not be cited in argument. Although the Court of Appeal has repeatedly deprecated the citation of comparable decisions which do not purport to establish any principle, or provide any guidelines, practitioners continue to pray them in aid, as was the case in this appeal.”]

Guilty Plea

• Ngo Van Nam [2016] 5 HKLRD 1; [2016] 5 HKC 231; CACC 418/2014 (2 September 2016)
• Empirical study – Cheng, Chui, Young & Ong, ‘Why Do Criminal Trials ‘Crack’ ?An Empirical Investigation of Late Guilty Pleas in Hong Kong‘ [2018] Asian Journal of Comparative Law 1

Binding Over

• legal certainty over “good behaviour” – Lau Wai Wo [2004] 1 HKLRD 372; (2003) 6 HKCFAR 624; FACC 5/2003 (19 December 2003), following Steel v UK [1998] ECHR 95
• 無刑事紀錄，更無暴力行為前科，不應單憑一次的事件(尤其是經審訊後他裁定被告人罪名不成立的案件)，在無證據、無前科顯示被告人將會對他人或財產施以暴力、或威脅施以暴力、或將會作出行為令他人有理由恐怕此等暴力將會出現的情況下，要被告人簽保 – 許智峯 [2018] 1 HKLRD 145; [2017] 4 HKC 318; HCMA 693/2015 (9 January 2017)

Community Service Order

• R v Brown (Mark Andrew) (1981) 3 Cr. App. R. (S.) 294 – adopted into Hong Kong in Chow Chak Man [1999] 3 HKLRD 37 [although result of that case has been criticised in e.g. Wong Yiu-kuen [2002] 1 HKLRD 712; Po Yan Chuen [2002] 2 HKC 712 at 714]
• Whether the court in R v Brown was laying down a conjunctive list of criteria?  – Sek Siu Fun [2002] 4 HKC 369; HCMA 1126/2001 (16 July 2002) – R v Brown itself is not a “guideline case” in the true sense – Wan Ka Kit [2006] 3 HKLRD 9 [“28. The court [in R v Brown], in other words, was not restricting the factors to be taken into account for the purposes of making a community serviceorder to the six which they had mentioned. Nor was it insisting that all six factors should necessarily be present, although wewould think that in the vast majority of cases where such an order was appropriate most, if not all, of these factors would be present”]
• Even if a community service order was appropriate for a defendant, a magistrate was not bound to impose that order – SJ v Lin Min Ying & Another [2001] HKCA 15; [2002] 3 HKC 415; CAAR 7/2001 (16 October 2001) – unless the defendant was made have reasonable expectation of a non-custodial sentence – R v Gillam [1980] 2 Cr. App. R (S.) 267
• genuine remorse, civil disobedience – 律政司司長 訴 黃之鋒及另二人 [2017] 5 HKC 116; CAAR 4/2016 (17 August 2017); 律政司司長 對 梁曉暘及另十二人 [2018] 1 HKLRD 702; [2017] 6 HKC 114; CAAR 3/2016 (11 September 2017)

Suspended Sentence

• Activation of suspended sentences – s. 109C of the Criminal Procedure Ordinance, Cap. 221 [in R v Li Kim Wai [1980] HKLR 833, at 834, Huggins JA said of the approach to be taken by the courts to section 109C: “We think it is important that suspended sentences should be activated where the law so requires, otherwise suspended sentences lose all their effectiveness. The whole purpose behind the suspended sentence is that a defendant shall know that if he commits a further offence he will go to prison on an activated sentence, save in exceptional circumstances, and those exceptional circumstances will rarely occur.”]
• To run consecutively or concurrently? – R v Ithell (1969) 53 Cr App R 210, where Edmund Davies LJ said at p 212: “The proper approach, where a fresh offence has been committed during the period of suspension of an earlier sentence and the wrongdoer is brought before the court, is that the court should first sentence him in respect of the fresh offence by punishment appropriate to that offence, and thereafter address itself to the question of the suspended sentence…unless there are some quite exceptional circumstances, the suspended sentence should be ordered to run consecutively to the sentence given for the current offence.” [recent application in SfJ v  Chan Ka Wah [2008] HKCA 135; [2008] 4 HKC 532; CAAR 5/2007 (16 April 2008)]
• Not activated due to Case Nature and Proximity to Expiry – Fung Shun Kwai 馮順貴 [1995-2000] HKCLRT 517 (Chinese Original); 521 (English Translation); HCMA 532/2000 (27 June 2000) [c.f. R v Li Kim Wai [1980] HKLR 833, where Huggins JA said “…mere dissimilarity between offences does not make it unjust” – recent application in Keita Ali CACC 419/2015 (21 March 2017)]

Training Centre

• Wong Chun Cheong v HKSAR [2000] 3 HKLRD 840; (2001) 4 HKCFAR 12; [2001] 1 HKC 1; FACC 9/2000 (8 January 2001) [whether appropriate to impose TCO where the minimum period of detention equals to or exceeds the maximum period of imprisonment for the offence – jurisprudential aspect of the issue – JS Mill, Hart cited – resolved by statutory interpretation of s. 4(1) of the Training Centre Ordinance, Cap. 280 – meaning of “in the interest of  community”/”the circumstances of the offence”/”in lieu of any other sentence” – principles re: TCO summarised at para. 41]

Forfeiture Order

• Nature & General Principles – Wong Hon Sun (黃瀚笙) (2009) 12 HKCFAR 877; [2010] 1 HKC 18; FACC 1/2009 (24 July 2009)
• Chan Chi Wai, Jimmy [2011] 4 HKLRD 302; [2011] 5 HKC 144; HCCC 300/2010 (2 August 2011)
• under Drug Trafficking (Recovery of Proceeds) Ordinance – NGOMA Juma Shabani  [2015] 5 HKLRD 57; [2015] 5 HKC 447; CACC 214/2014 (2 September 2015)
• CA’s discussion on procedure, with McWalters JA’s dissent – Shoki Fatuma Ramadhani [2015] 2 HKLRD 696; [2015] 4 HKC 55; CACC 187/2014 (30 March 2015)

Common Assault & AOABH

• involving domestic helpers as victims – refer to previous research
• throwing stuff at politicians – 陳德章 HCMA 741/2014 (29 April 2015)

Fraud, involving breach of trust – refer to previous research

Money laundering – refer to quantum table

Unlawful intercourse with underage girls (ss. 123 / 124) – refer to quantum table

Armed robbery – Mo Kwong-sang [1981] HKLR 610, affirmed in Secretary for Justice v Ma Ping Wah [2000] 2 HKC 566

• monetary loss of the victim not the primary concern in sentencing because “it’s not the gravamen of the offence” – 林俊南 [2008] 2 HKCLRT 133
• the victim’s perception of whether the defendant was armed vs whether the defendant was actually armed? Is the distinction artificial? Yu Tai Wing [1995] HKCA 318; [1995] 1 HKC 837; CACC 454/1994 (28 February 1995) [Macdougall VP – “14. For policy reasons we take the view that in the case of bank robberies, jewellery shop and goldsmith shop robberies, security van or payroll robberies and such the like, no distinction should be made between cases where genuine firearms are used but not discharged and those in which imitation firearms are used. Obviously the risk that a loaded genuine firearm carried by a robber might be discharged in the course of such robbery does not exist where the robber is armed with an imitation firearm. But the chance that the police or security guards who are called to or happen upon the scene might open fire in the course of such robberies cannot be overlooked. The risk of innocent bystanders being killed or injured is always present in circumstances where decisions have to be made in split seconds“]; On Ling [2005] HKCA 673; [2005] 1 HKC 227; CACC 386/2004 (4 January 2005) [Yu Tai Wing distinguished on the ground that the case should not be regarded as an armed robbery]; revisited in TAM Tak-cheung (譚德祥) CACC 209/2017 [On Ling approach questioned – discussed whether the victim “could see”/”would have believed”/”would be reasonable to believe” – but did not resolved the issue because emphasis was on the seriousness of the offence – “23. I have to say, respectfully, that I have difficulty with the reasoning in HKSAR v On Ling, where the Court held that the purported carrying of a weapon, which was in fact a roll of newspapers, took the case outside the Mo Kwong Sang v R guidelines. It is no consolation to the terrified victim of a robbery that, contrary to the defendant’s claim, there was in fact no weapon when he said, and the victim believed, that there was. Nevertheless, the facts in HKSAR v On Ling were somewhat different. There, the victim was able to see that what was pointed at him was in fact a roll of newspapers, before he immediately collapsed on the ground out of fright.”]

Theft by pickpocketing – tariff – Ngo Van Huy [2005] 2 HKLRD 1 – should not be regarded as immutable or ceiling – categories of aggravating features not closed [Macrae J’s (as he then was) in Sandagdorj Altankhuyag & Anor [2014] 1 HKC 206] – 可因加刑因素偏離準則，但法庭須顧及案情 (但並非加刑因素)，包括失物的價值、受害人年紀及犯案手法等等。法庭須避免在採納12至15 個月在何處著墨時，考慮了「加刑」因素，因而引致「雙重計算」- Chiu Suet Yee Angel (趙雪儀) (unrep., CACC 105/2010, Barnes J, 27 October 2010)

Theft by shoplifting – 在香港特別行政區訴楊艷雲 [[2014] 1 HKLRD 546] HCMA 54/2013 (未經彙編，2013年4月30 日)，胡國興法官指出：- “17. … 法庭對於積犯或慣犯的判刑沒例外地判處監禁或提升刑期。如果涉案的物品很小、像日常一般飲品食物，而價值也不高，法庭對初犯者多會判以罰款，但是對於重犯者，而所涉物品價值超過$100以上，最低的量刑基準為3個月監禁，同類前科越多則量刑基準提升越高。”

Possession of forged identity card – Li Chang Li (李長利) [2005] 1 HKLRD 864 [“40. In our judgment, for the offence of possessing a forged identity card or identity card belonging to another, even if the offender’s presence in Hong Kong is lawful, the starting point upon a plea of guilty should ordinarily be 12 months’ imprisonment, so as to reflect the seriousness of the offence and serve deterrent purposes. 41. If the offender has actually produced or used a forged identity card or identity card belonging to another in order to conceal his identity, work illegally or unlawfully further his stay in Hong Kong, then the starting point upon a plea of guilty should be 15 months’ imprisonment.”] – overruled V Bokhary J’s “guidelines” in Chan Man Mo [2001] 1 HKLRD 121 – previous inconsistencies between Chan Man Mo and Shamin Nawaz [1994] HKCLR 195 (Barnett J); see discussion in e.g. Lau Sau King (unrep., HCMA 701/2004, Lugar-Mawson J, 14 September 2004)

Management vice establishment – 高等法院暫委法官杜溎峰 (當時官階) 在香港特別行政區 訴林詩琪及另一人 [2005] 3 HKLRD 273，第279頁表示： 「 15. 從HKSAR v Lee Tang Yau HCMA 602/2011與香港特別行政區 訴 張招財及另一人 HCMA 531/2003兩件案可見，法庭普遍認同管理賣淫場所的量刑起點為十二個月監禁。本席認為在釐定量刑起點時，裁判官應考慮有關賣淫場所的規模、運作模式、所提供的賣淫活動、場所的面積、僱員的人數、妓女的人數、顧客的數目、所收取的費用、營業利潤與營業額等。一般的賣淫場所僱用不超過五名僱員及不超過十名妓女，管理模式較為簡單。本席認為管理這類賣淫場所的恰當量刑起點是十二個月監禁。裁判官可視乎該賣淫場所的規模與運作模式釐定恰當量刑起點。此外，裁判官亦可考慮其他嚴重情況而提高量刑起點：如所僱用妓女的年紀、 她們是否非法居民、她們可否在香港受僱傭等。協助管理這類賣淫場所的恰當量刑起點可以比管理者為低， 但這視乎他所協助的性質與程度。」

Road Traffic Offences

• Drunk driving – see quantum table
• “Failing to report an accident which involved damage”, contrary to section 56(2A) and (6) – Wei, Edmund Chih Chan (unrep., HCMA237/2016, Deputy High Court Judge CP Pang, 14 March 2017)
• Disqualification order – 高院原訟庭暫委法官陳嘉信 (當時官階) 在香港特別行政區訴何炳崇 HCMA 603/2015 一案第11段指出，停牌令的長短必須在公眾利益和上訴人的個人情況之間取得平衡。而且，停牌多久才算合適，並無量刑指引，一切須以個別案件情況而定 – 高院原訟法庭暫委法官張慧玲 (當時官階) 在香港特別行政區訴蔡林飛 HCMA 539/2006 一案第17段表示，當犯案者是職業司機時，法庭一方面需要考慮「停牌」對他構成的經濟困境，尤其是會否將犯案者「逼上梁山」(即令他無法維生而為非作歹) 。另一方面，法庭亦須考慮犯案者若以其不正確的駕駛態度長時間在道路上駕駛，對公眾構成危害的風險。故法官/裁判官行使酎情權時，需考慮如何在兩者之間取得平衡。

• Practice – Third-party procedure – Counterclaim by third party, a defendant in the action – Third-party notice served by second defendants on third defendants claiming indemnity or contribution – Third-party notice treated as statement of claim – Defence and counterclaim by third defendants – Whether court had jurisdiction to entertain counterclaim – Counterclaim including claim for payment and set-off of alleged indebtedness for work done in relation to matters, some of which were not the subject of the plaintiffs’ action – Exercise of court’s discretion to strike out counterclaim or to direct separate trials – RSC, Ord 15, r 2, r 5(2), Ord 16, r 1(3), r 8(3).

N P Metcalfe Esq Barrister.

• Arbitration – Arbitrator – Jurisdiction – Inordinate and inexcusable delay in prosecution of claim – Whether jurisdiction in arbitrator to dismiss claim for want of prosecution – Whether jurisdiction in court to restrain claimant from proceeding in arbitration – Parties’ obligation to prevent inordinate delay – Duty to apply to arbitrator
• Injunction – Jurisdiction to grant – Arbitration proceedings – Inordinate and inexcusable delay in prosecution of claim – Whether claimant under duty not to so delay – Court’s jurisdiction to restrain party continuing with arbitration for repudiatory breach of arbitration agreement

[Reported by MRS. CLARE BARSBY, Barrister-at-Law]

C. N.

W. J. B.

*294 R. v Mark Andrew Brown

Court of Appeal

22 October 1981

(1981) 3 Cr. App. R. (S.) 294

The Lord Chief Justice, Mr. Justice Mustill and Mr. Justice McCullough

October 22, 1981

Burglary—Burglary of Factory by Young Man of Previous Good Character—Whether Community Service Order Appropriate.

References: community service orders, Principles of Sentencing , p. 237.

Commentary: [1982] Crim. L.R. 126.

Borstal training varied to allow the immediate release of an appellant aged 19 who was concerned in a burglary at the premises of his employers. Observations on the suitability of community service orders in such cases.

The appellant, aged 19 and with no previous convictions, pleaded guilty to burglary. He had taken part in a burglary at the premises of his employer, allowing his keys to be used to unlock padlocks securing the door of the stock room. Goods worth a total of about £2,850 were stolen. His co-defendant, an older man with a substantial record, was sentenced to 12 months’ imprisonment. The appellant was sentenced to Borstal training. Held but for the availability of community service orders, a custodial sentence would have been entirely appropriate, having regard to the breach of trust, but the case was tailor made for community service. The appellant was a first offender (although the position would have been the same if he had had a “light” criminal record), he came from a stable home background, with a wife and young child, had a good work record and had a job available. There was apparently genuine remorse and the risk of re-offending was slight. If the court were to sentence the appellant de now , it would make a community service order, but as he had been in custody for three months the sentence would be varied to imprisonment for one day.

C. Jervis for the appellant.

McCullough J.:

On July 30, 1981 at the Crown Court at Bristol, the appellant pleaded guilty to one offence of burglary and was ordered to undergo Borstal training.

He appeals against sentence with the leave of the single judge.

He is 19, without any other convictions. He is a married man who was at the time living with his wife and their young child. At the time of this offence he was only 18, and he was working for Wonderfire Ltd. of Bristol. They make gas fires. In that capacity he was entrusted with the keys of the padlocks of the main stock room.

On the date in question he and his brother-in-law, a man called Blake, then aged 21, with a dreadful criminal record, burgled the premises together, the appellant’s keys being used to unlock the padlocks and the padlocks then being thrown away, so that it would not appear that they had not been broken. Nineteen gas fires were taken, worth very nearly £150 each.

It was intended to sell them. He and Blake together visited a man called Briggs to *295 whom a number of fires were delivered. Although the appellant was present at that time, it appears that he did not take part in the arrangements made for the selling. Three fires were later recovered from Briggs and a further six or seven from Blake. The remaining fires are missing.

The appellant was arrested two or three weeks after the burglary. He admitted his part. He said that he had hoped to settle certain debts out of his share of the proceeds from the sale of these fires.

The other two also pleaded guilty. Blake was by then 22. He had 13 previous court appearances, the last for theft having been as recently as three months before this offence. He had been to Borstal, he had served one term of imprisonment, he was in breach of a suspended sentence and of a community service order. He was sent to prison for 12 months. Briggs was 27. He had 12 previous court appearances, including one resulting in a term of imprisonment, his last appearance being only five days before this particular offence when a community service order had been made following a conviction for theft.

In the starkest contrast was the appellant. He was 19, younger than the others, and without any previous conviction at all. He was married and, as I have said, living with his wife and young child. He was in employment with Wonderfire until the occasion of his arrest for this offence. It is impossible, reading the papers, to resist the conclusion that he would never have offended but for the influence of Blake.

Mr. Jervis, who has appeared for him today, as he did in the court below, accepts that the order of Borstal training was appropriate in the light of the information then available to the Crown Court, particularly having regard to the fact that this was a case of a serious breach of the trust that his employers had placed in him. However he draws our attention to a letter from the employers, written after this young man had arrived in Borstal. It says amongst other things, “… we were more than surprised to learn that you were involved in the robbery …. We all thought of you as the best worker in the factory, apart from your manager …. Should your appeal be successful, then we would seriously consider any application that you might make to take on your old job for this Winter.” The letter ends with the words “I do hope that your appeal is successful.”

In the light of that letter, which of course was not available at the Crown Court, we have looked at all these mitigating factors again. We have come to the conclusion that, but for the availability nowadays of orders for community service, a custodial sentence is entirely appropriate, having regard to the breach of trust. But this case is tailor-made for a community service order. We have here a first offender—indeed the position would have been the same if he had had what I might call a “light” criminal record; he came from a stable home background with a wife and a young child; he had a good work record; and it now appears that a job is available to him. There is apparently genuine remorse and the risk of re-offending appears slight.

Taking all those factors together, were we sentencing this man de novo, we would make a community service order. But the appellant has been in Borstal for the past three months. We think that that is enough. We are not therefore going to make a community service order. We have to pass a sentence of some sort. We cannot very well pass a sentence of such a term of imprisonment as will enable his immediate release, because that would offend against the provision which prohibits the imprisonment of offenders of his age if some other method of dealing with them is appropriate. Accordingly we propose, having quashed the order for Borstal training, to substitute the nominal order that he be imprisoned for one day. To that extent the appeal is allowed.

R. v James Henry Sargeant

Court of Appeal

17 October 1974

(1974) 60 Cr. App. R. 74

Lord Justice Lawton, Lord Justice Scarman and Mr. Justice Dunn

October 10 and 17, 1974

Sentence—General Aspects of Punishment—How Far Applicable at Present Time.

Evidence—Antecedents of Defendant—Appropriate Manner of Giving—Matters Disputed by Defence.

Observations on the general aspects of punishment—retribution, deterrence, prevention and re-habilitation and how far they are relevant to the present day.

Great care should be taken in giving to the trial judge the antecedents of a convicted person, and the practice laid down in Van Pelz (1942) 29 Cr. App. R. 10 should be followed. Defending counsel should read the police report of the antecedents beforehand and, if there is anything in it which *75 is disputed by the defendant, he should bring that matter at once to the attention of prosecuting counsel. Prosecuting counsel must then decide whether to call admissible evidence to prove the disputed facts or prevent the police officer from giving evidence about the disputed matters.

Van Pelz (1942) 29 Cr. App. R. 10 and Robinson (1969) 53 Cr. App. R. 314 followed.

Appeal against sentence.

The appellant pleaded guilty at the Central Criminal Court on May 20, 1974, to affray and was sentenced by His Honour Judge Argyle Q.C. to two years’ imprisonment.

H. M. Boyd for the appellant. No counsel appeared for the Crown.

Lawton L.J.:

On May 20, 1974, at the Central Criminal Court, the appellant pleaded guilty to a charge of affray at the end of the prosecution’s case. On May 24, 1974, he was sentenced by His Honour Judge Argyle to two years’ imprisonment. He now appeals against that sentence by leave of the single judge, who asked for an up-to-date Social Enquiry report to be prepared. He also asked the prison authorities to report how this appellant had reacted to his sentence.

During the evening of October 26, 1973, the appellant was on duty at a discotheque at Crown Hill at Croydon, together with three other doormen. Their job in colloquial language was to act as “bouncers.” The appellant had no criminal record. The other bouncers had. One of them had a bad criminal record. There was another man on the staff of this discotheque who was taking part in what the prosecution alleged was the affray. He too had a bad criminal record.

The duties of the bouncers were to see that people did not get into the discotheque without paying and to maintain order inside. They must have had a difficult job. When this offence was committed, which was about midnight on October 26, 1973, there were no less than 700 people there. The discotheque was licensed and there was more than one bar. These bars were open up to the ordinary licensing hours. But by taking advantage of certain provisions in the Licensing Acts, the proprietors of that discotheque were able to go on serving liquor after the end of ordinary licensing hours by having a so called “waitress service.” The result of that way of running the discotheque was to make it a magnet for young men in the Croydon area, who had been drinking in public houses and who wished to go on drinking after the public houses closed.

A party of young men had been drinking in a public house in the Carshalton area. They were respectable young men as far as is known. By the time when this public house closed, a few of them had had more to drink than they should have done. They decided, as young men are wont to do, to continue their drinking at this discotheque in Croydon. They went there, some in a mini-bus which had been laid on for the purpose, and others in their own motor vehicles.

When they got to the discotheque, they went up to one of the bars. By this time there was waitress service in the bar. This inevitably meant that there was some delay in people getting served with drinks. Some of the young men there became impatient. One of the young men who had come in the party from Carshalton started behaving badly. Perfectly properly one of the bouncers told him to stop it, otherwise he would be put out. He did stop.

The appellant had been nearby whilst this young man had been making a nuisance of himself. The appellant seemed to think that the situation called for some physical intervention on his part. He went up to this young man, *76 caught him round the neck, and then butted him two or three times. There was no need for this intervention, still less for the violence. The inevitable happened. The group of young men from Carshalton, seeing their friend being treated in this way, intervened. Thereupon the other bouncers joined in. There followed a scene of extreme violence. Very serious injuries indeed were inflicted on some of these young men, and it is clear that somebody, but not this appellant, used weapons upon the young men. Fortunately perhaps for this appellant, he was quickly put out of action by somebody’s foot coming into contact with his testicles. The evidence would indicate that the injury which he sustained, if not serious, was painful.

As a result of this affray, the police arrived on the scene. At first they did not appreciate that the bouncers had been involved to the extent to which they had been. The young men were taken to hospital to be treated for their injuries. In due course the police decided that the bouncers had to be interviewed. They were taken to the police station. It is to this appellant’s credit that, almost as soon as he arrived there, he made a frank and accurate statement to the police as to what his part had been. By this time he was clearly sorry for what he had done. He told the police that he appreciated that he had over-reacted to the situation, and had used more force than was necessary. Very properly the bouncers were charged with affray and sent for trial.

At the trial this appellant and another bouncer, whose name was Trestain, pleaded guilty. The other bouncers were acquitted. We have been informed this morning by counsel that yet another employee, who was involved but who was not arrested at the time, has since been arrested and committed for trial. The man Trestain was sentenced by Judge Argyle to three years’ imprisonment. He has not appealed, and it is not for us to make any comment of any kind about the sentence which was passed on him. We are concerned solely with the sentenced passed on this appellant.

As I said at the beginning of this judgment, this appellant has had no previous convictions. He is 26 years of age, and a skilled green-keeper in the golfing world. He started acting as an assistant green-keeper in his adolescence. He has acquired a good deal of expertise. He has had jobs as green-keeper with a number of distinguished and well-known golf clubs. The tragedy of his case is that the very day on which he appeared at the Central Criminal Court he should have been starting work as head green-keeper with one of the best known golf clubs in the south of England. His conviction has inevitably meant that that job is no longer available to him, and it also means that there is a strong possibility that no golf club will ever employ him again. By his stupidity on this occasion, he has deprived himself of a career in the golfing world, and all because he lost his temper when trouble started. The very fact that he has lost his career is of course a severe penalty for him.

The problem for this Court is whether the sentence was wrong in principle. It is necessary for this Court to analyse the facts of this case. We have come to the conclusion that, if the trial judge did analyse them, he analysed them incorrectly. What really was the case against this appellant? His job was to help to keep order. He was inexperienced in that job. It is clear from his record that he is inclined to be headstrong. I say that, because despite his skill as a green-keeper, he has had some difficulty in keeping jobs, because he cannot always see eye to eye with golf clubs’ secretaries. He had had something to drink whilst he was on duty that night, though there was nothing to suggest that he had had too much to drink. If he had followed the instructions of his employers, he would not have had anything to drink. He was faced with a situation in which a young man had been misbehaving. He took the view, wrongly with hindsight, that the best way of dealing with the potential difficulties which *77 that young man might cause, if he resumed misbehaving, was to use some force on him. He used no weapon. What he did do was to butt the young man, which can be very painful for the victim. If he had thought for a moment, he would have appreciated the nature and extent of the chain of events which he was starting. It is almost certain that he did not think. Young men who act in this kind of physical way seldom do think of what the consequences are going to be. The evidence establishes that very soon after he did what he did he was put out of action and took no further part in the appalling violence which followed.

What ought the proper penalty to be? We have thought it necessary not only to analyse the facts, but to apply to those facts the classical principles of sentencing. Those classical principles are summed up in four words: retribution, deterrence, prevention and rehabilitation. Any judge who comes to sentence ought always to have those four classical principles in mind and to apply them to the facts of the case to see which of them has the greatest importance in the case with which he is dealing.

I will start with retribution. The Old Testament concept of an eye for an eye and tooth for tooth no longer plays any part in our criminal law. There is, however, another aspect of retribution which is frequently overlooked: it is that society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass. The courts do not have to reflect public opinion. On the other hand courts must not disregard it. Perhaps the main duty of the court is to lead public opinion. Anyone who surveys the criminal scene at the present time must be alive to the appalling problem of violence. Society, we are satisfied, expects the courts to deal with violence. The weapons which the courts have at their disposal for doing so are few. We are satisfied that in most cases fines are not sufficient punishment for senseless violence. The time has come, in the opinion of this Court, when those who indulge in the kind of violence with which we are concerned in this case must expect custodial sentences.

But we are also satisfied that, although society expects the courts to impose punishment for violence which really hurts, it does not expect the courts to go on hurting for a long time, which is what this sentence is likely to do. We agree with the trial judge that the kind of violence which occurred in this case called for a custodial sentence. This young man has had a custodial sentence. Despite his good character, despite the excellent background from which he comes, very deservedly he has had the humiliation of hearing prison gates closing behind him. We take the view that for men of good character the very fact that prison gates have closed is the main punishment. It does not necessarily follow that they should remain closed for a long time.

I turn now to the element of deterrence, because it seems to us the trial judge probably passed this sentence as a deterrent one. There are two aspects of deterrence: deterrence of the offender and deterrence of likely offenders. Experience has shown over the years that deterrence of the offender is not a very useful approach, because those who have their wits about them usually find the closing of prison gates an experience which they do not want again. If they do not learn that lesson, there is likely to be a high degree of recidivism anyway. So far as deterrence of others is concerned, it is the experience of the courts that deterrent sentences are of little value in respect of offences which are committed on the spur of the moment, either in hot blood or in drink or both. Deterrent sentences may very well be of considerable value where crime is premeditated. Burglars, robbers and users of firearms and weapons may very well be put off by deterrent sentences. We think it unlikely that deterrence would be of any value in this case.

We come now to the element of prevention. Unfortunately it is one of the facts of life that there are some offenders for whom neither deterrence nor *78 rehabilitation works. They will go on committing crimes as long as they are able to do so. In those cases the only protection which the public has is that such persons should be locked up for a long period. This case does not call for a preventive sentence.

Finally, there is the principle of rehabilitation. Some 20 to 25 years ago there was a view abroad, held by many people in executive authority, that short sentences were of little value, because there was not enough time to give in prison the benefit of training. That view is no longer held as firmly as it was. This young man does not want prison training. It is not going to do him any good. It is his memory of the clanging of prison gates which is likely to keep him from crime in the future.

In the light of that analysis of the classical principles to be applied in sentencing, what is the result on the facts of this case? The answer is that this sentence is much too long. It was submitted that a suspended sentence should have been passed. For the reasons I have already given, we do not agree. But we are satisfied, having regard to the facts of this case and the social inquiry and prison reports which the Court has been given that we can deal with this case by substituting for the sentence which was passed such a sentence as will enable him to be discharged today. To that extent the appeal is allowed.

The case was adjourned for re-hearing on October 17, 1974.

The appellant was not represented. Leonard Gerber for the Crown.

Lawton L.J.: When the appeal of James Henry Sargeant was before the Court last week our attention was drawn to the fact that Detective Inspector Ingram, as he then was (he has since retired from the Metropolitan Police) at the trial had given evidence about Sargeant in these terms: “Q. And do you understand that apart from employment at Scamps, his last employment was as a head greenkeeper? A. Yes, Sir. Q. Which terminated on August 31 of last year, he being dismissed for drunkenness? A. Yes, Sir.”

Counsel defending Sargeant had instructions that that was not true. As a result he cross-examined the Inspector as follows: “Q. My instructions also are that he left his last greenkeeping job having given in his notice, and not for the reason given in your report, but I believe your source of information is the Club Secretary? A. The Club Secretary, Sir.” The inference which the Court draws from the form of defending counsel’s question is that before the Inspector gave the evidence to which I have referred there had been some discussion either between counsel and the Inspector or between defending counsel and prosecuting counsel about the circumstances in which the accused had come to leave his last employment. The Court also draws the inference that defending counsel had made it clear to somebody on the prosecution’s side that it was disputed that the accused had been dismissed for drunkenness. What then should have followed? If the prosecution took the view, as they could have done, that it would have helped the learned judge to know whether the accused had been dismissed for drunkenness, on finding that this allegation was disputed admissible evidence should have been called. The information which the Inspector gave to the Court was hearsay.

When the appeal came to this Court it was reported to the Court by the probation officer that the Club Secretary had denied that he had ever said anything of the kind alleged. He told the probation officer that the accused had left the employment on notice. The Court thought that this conflict of recollections was most unsatisfactory and as a result requested the Commissioner of Police for the Metropolis to have some inquiries made and, as we expected would happen, most thorough inquiries have been made and the results reported to the Court. In fairness to the ex-Inspector this should be said. He has given a circumstantial *79 account of how he got this information. Those from whom he says he got it have denied that they gave it to him. What is obvious, however, is that such information as was given by the Club Secretary to the Inspector was given over the telephone and we all know that messages given over the telephone can be misunderstood.

The Court has no intention of trying to resolve the conflict of recollection which exists in this case, but what it does propose to do is to call attention once again to, and to underline, the need for great care in the giving of evidence of antecedents. As I reminded counsel in the course of discussion, before 1941 it was a common practice for police officers giving evidence of antecedents to make general observations about an accused person such as “He is known to resort with prostitutes and thieves.” In 1941 the Court of Criminal Appeal in the case of Van Pelz, 29 Cr. App. R. 10, disapproved strongly of that kind of evidence. Perhaps I might call attention to what was said by the police officer in that case. The accused was a woman and it was said of her: “She is very well known indeed as a prostitute who frequents the West End of London with a view to contacting men with money, and her activities in this direction have exercised the mind of the police for a considerable time past.” I am not going to read from the judgment, I will read part of the headnote: “A police officer called after conviction to give evidence of the character and antecedents of the prisoner should in general confine his evidence to the previous convictions (if any) and antecedents of the prisoner, including evidence of the prisoner’s home and upbringing if his age makes this information material. He should also inform the Court of any matters (whether the subject of charges which are to be taken into consideration or not) which he believes are not disputed,” and I would wish to underline the word “disputed,” “by the prisoner and ought to be known to the Court. He should, further, inform the Court of anything known in the prisoner’s favour, such as periods of employment or good conduct.” Following that case it became the practice at the Bar for prosecuting counsel to give defending counsel an opportunity of making representations about any matter in the antecedent report which was disputed. The Court was pleased to hear from Mr. Gerber today that that practice still continues.

Defending counsel should read the antecedent report and, if there is anything in it which is disputed by his client, he should bring that matter at once to the attention of prosecuting counsel. Prosecuting counsel will then have to make up his mind whether to call admissible evidence to prove the disputed facts or to omit them from the evidence. That means, of course, that he must stop the police officer giving evidence about the disputed matters.

We have not had the benefit today of hearing prosecuting counsel in this case, through no fault of his, so we do not know exactly what happened. The most we can do is to infer that it is probable that defending counsel indicated in some way that there was a dispute about this matter of the dismissal. Whether defending counsel pointed to the disputed facts clearly enough, again we do not know, and we make no criticism of counsel on either side. What we do wish to do is to underline the importance of the principle in Van Pelz (supra) being followed.

It was found necessary in 1969 in Robinson, 53 Cr. App. R. 314, to draw attention to the need for care in this matter. Once again we call attention to the need for great care in this matter. Nothing gives a bigger sense of injustice to a convicted man than false statements being made about him after the verdict. We hope that it will not be necessary for some time now to remind anybody of the importance of this matter.

Representation

• Solicitor: The Solicitor, Metropolitan Police, for the Crown.

Sentence reduced.

R v Self

COURT OF APPEAL, CRIMINAL DIVISION

WATKINS LJ, SWINTON THOMAS AND GARLAND JJ

25 FEBRUARY 1992

Arrest – Arrest without warrant – Power to arrest without warrant where arrestable offence has been committed – Resisting arrest – Arrestable offence – Subsequent acquittal of defendant of offence for which arrested – Whether defendant can be convicted of assault with intent to resist lawful apprehension if he is acquitted of offence for which arrested – Offences against the Person Act 1861, s 38 – Police and Criminal Evidence Act 1984, s 24(5).

The appellant was seen by a store detective to put a bar of chocolate in his pocket and leave the store without paying for it. The store detective and a shop assistant followed the appellant and tried to arrest him, aided by a member of the public who stated he was making a citizen’s arrest. The appellant resisted, assaulting both the shop assistant and the member of the public before he was finally apprehended. He was charged with theft and two counts of assault with intent to resist or prevent his lawful apprehension or detainer contrary to s 38^a of the Offences against the Person Act 1861. At his trial the appellant was acquitted of theft but convicted on the two assault charges. He appealed against his conviction on the ground that where an arrestable offence had been committed a citizen’s arrest could only be effected under s 24(5)^b of the Police and Criminal Evidence Act 1984 of a person who was guilty of the offence or who was suspected on reasonable grounds to be guilty of the offence and since he had been acquitted of the theft neither the shop assistant nor the member of the public was entitled to make a citizen’s arrest under s 24 and therefore he could not be convicted of the offences under s 38 of the 1861 Act.

^a     Section 38, so far as material, provides: ‘Whosoever shall assault any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence, shall be guilty of [an offence] …’
^b     Section 24(5) is set out at p 479 a b, post

Held – On the true construction of s 24(5) of the 1984 Act the power of arrest without warrant where an arrestable offence had been committed required as a condition precedent that an offence had actually been committed. If the person arrested was subsequently acquitted of the alleged offence for which he had been arrested no offence had been committed and there was no power to effect a citizen’s arrest under s 24 of the 1984 Act. Since the appellant had been acquitted of the theft charge he had not committed an arrestable offence at the time he was arrested and was entitled to resist his apprehension, with the result that he had not committed the offences under s 38 of the 1861 Act. Accordingly, the appeal would be allowed and his convictions on the two counts under s 38 of the 1861 Act would be quashed (see p 480 c d g h, post).

Walters v W H Smith & Son Ltd [1911–13] All ER Rep 170 considered.

Notes

For the powers of arrest without warrant, see 11(1) Halsbury‘s Laws (4th edn reissue) paras 703–709, and for cases on the subject, see 14(1) Digest (Reissue) 194–210, 1392–1526.

[1992] 3 All ER 476 at 477

For the Offences against the Person Act 1861, s 38, see 12 Halsbury‘s Statutes (4th edn) (1989 reissue) 102.

For the Police and Criminal Evidence Act 1984, s 24, see ibid 867.

Cases referred to in the judgment

Walters v W H Smith & Son Ltd [1914] 1 KB 595, [1911–13] All ER Rep 170.

Appeal against Conviction

Graham Self appealed against his conviction on 10 July 1991 in the Crown Court at Kingston-upon-Thames before Judge Wakley and a jury of two counts of assault with intent to resist or prevent lawful apprehension or detainer contrary to s 38 of the Offences against the Person Act 1861 on the ground that, having been acquitted of the alleged theft which had led to his arrest the arrest had been unlawful. The facts are set out in the judgment of the court.

Nicholas Price (assigned by the Registrar of Criminal Appeals) for the appellant.

Stuart Sleeman (instructed by the Crown Prosecution Service) for the Crown.

25 February 1992. The following judgment was delivered.

GARLAND J

delivered the following judgment of the court. On 10 July 1991 in the Crown Court at Kingston-upon-Thames before Judge Wakley this appellant was tried on an indictment which contained three counts. Count 1 alleged that he stole a bar of chocolate (value 79p) belonging to F W Woolworth plc. Count 2 alleged that, contrary to s 38 of the Offences against the Person Act 1861, he assaulted Stuart Michael Frost with intent to resist or prevent the lawful apprehension or detainer of himself. Count 3 alleged a similar offence against Jonathan George Mole.

All the offences were said to have been committed on 29 October 1990 and formed part of a continuous chain of events. The appellant was acquitted on count 1, the theft, but convicted on count 2 by a majority of 10 to 2 and on count 3 by a majority of 11 to 1. He was conditionally discharged and modest compensation was made.

The facts quite briefly stated were as follows. The appellant was a serving police officer, a detective constable. He had been in the police force for some 17 years. On the afternoon in question in October 1990 a Mrs Stanton, who is a store detective in Woolworths in Kingston, saw the appellant pick up a bar of chocolate. He then moved on and apparently picked up some Christmas cards using both hands. The chocolate had disappeared; in fact, he had put it in his trouser pocket. He then left the store without paying. Mrs Stanton asked Mr Frost, a young sales assistant, to help her. They followed the appellant out into the street and along Church Street. Mrs Stanton saw him put his hand in his pocket, take out the chocolate and throw it under a car. She actually retrieved it and said to him: ‘I do not want to call the police for a bar of chocolate. Come here and come back to the store.’ Mr Frost approached the appellant and said: ‘You have been seen shoplifting.’ The appellant became agitated, tried to leave, grabbed Mr Frost’s arm and scratched it, punched him on the cheek, kicked him on the shin and then ran off with Mr Frost in pursuit.

Mr Mole came into the picture because he was in his car and saw what had happened between the appellant and Mr Frost. He got out of his car and asked Mrs Stanton if she needed any help. She said ‘Yes’, so Mr Mole also ran after the appellant. During the chase the appellant jumped down a steep drop, some ten feet or more, from a churchyard to the street below. When Mr Mole caught up with him he took hold of his wrist and there was a minor struggle. He told the appellant that he was making a citizen’s arrest because he believed he had been shoplifting.

[1992] 3 All ER 476 at 478

The appellant struggled and apparently kicked Mr Mole just above his knee and tried to run away again. Mr Mole and Mr Frost caught up with him, there was a further struggle but in the end the appellant quietened down and there was some conversation between the persons involved. Mr Frost did say the appellant was in a very distressed condition, both physically and mentally.

When the appellant came to give his account of these matters before the jury he said that he recalled picking up the bar of chocolate in Woolworths but had no recollection of what had happened afterwards, save that he remembered looking at the Christmas cards. The chocolate was undoubtedly in his pocket when he left the store. He had forgotten about it. He had no intention of stealing it and had set off towards a bookshop. But on the way he put his hand in his pocket and realised that he had not paid for the chocolate that he found there. He then heard people running behind him and saw Mrs Stanton and Mr Frost coming and shouting and then everything closed in on him. He panicked and thought the situation looked very grave indeed. He threw the chocolate away and ran. Then Mr Frost intervened and the two scuffles with Mr Frost and Mr Mole followed.

He could not explain his actions. He felt sorry for Mr Frost and Mr Mole, who he thought had acted very properly. It should be mentioned in passing that a doctor confirmed that the appellant was at the time suffering from some degree of stress.

This matter comes before the court by leave of the single judge on a point of law. There is one point central to the appeal. It is this. Since the appellant was acquitted of theft neither Mr Frost nor Mr Mole were entitled by virtue of s 24 of the Police and Criminal Evidence Act 1984 to effect a citizen’s arrest. If they were not entitled to do that then this appellant could not be convicted of an assault with intent to resist or prevent the lawful apprehension or detainer of himself, that is to say his arrest.

In order to examine this proposition it is necessary of course to look closely at s 24 of the Act. But first some mention should be made of the extent to which the learned judge dealt with the matter. Counsel for both the defence and the prosecution have frankly informed us that they did not address their minds to s 24 and the question of whether or not the two complainants in fact were entitled to arrest the appellant. As a result of that, the learned judge never dealt with the issue, so far as the jury were concerned, by in any way seeking to link count 1, the theft, to counts 2 and 3 should the jury have been minded to acquit the appellant of count 1 before turning to the other counts. All he said was this:

‘He [that is one of the two young men] is perfectly entitled to make a citizen’s arrest and it is a publicly spirited thing to do whether right or wrong, provided there is reasonable cause to suspect.’

It is necessary, as has been said, to turn to the Act. Section 24 deals with powers of arrest without warrant. Subsection (1) sets out to define arrestable offences in respect of which powers of summary arrest can be exercised. Subsections (2) and (3) deal with the other qualifying offences. Subsection (4) begins to set out powers of arrest in the following terms:

‘Any person [and of course ‘any person’ means both a citizen and a constable] may arrest without a warrant—(a) anyone who is in the act of committing an arrestable offence; (b)anyone whom he has reasonable grounds for suspecting to be committing such an offence.’

It is immediately apparent that that subsection is dealing with the present continuous, that is somebody in the act of committing the offence or someone

[1992] 3 All ER 476 at 479

that the arrester has reasonable grounds for suspecting to be committing such an offence.

Subsection (5) moves on to the past, indeed the perfect, tense:

‘Where an arrestable offence has been committed, any person [both citizen and constable] may arrest without a warrant—(a) anyone who is guilty of the offence; (b) anyone whom he has reasonable grounds for suspecting to be guilty of it.’

One asks: guilty of what? The answer is: guilty of the arrestable offence which has been committed.

Then by contrast sub-s (6) deals with a constable’s powers of arrest, which are very much wider than those of the citizen. It provides:

‘Where a constable has reasonable grounds for suspecting that an arrestable offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence.’

Thus there are double reasonable grounds for suspecting, both as to the commission of the offence and the person who has committed it.

Subsection (7) again deals with constable’s powers and this is in anticipation of an offence. It provides:

‘A constable may arrest without a warrant—(a) anyone who is about to commit an arrestable offence; (b) anyone whom he has reasonable grounds for suspecting to be about to commit an arrestable offence.’

Then s 25 goes on to deal with general arrest conditions otherwise than for arrestable offences.

Although it appears to this court that the resolution of this particular matter is to be achieved by construing the plain words of the statute, we were referred to authority and in particular to Walters v W H Smith & Son Ltd [1914] 1 KB 595, [1911–13] All ER Rep 170, which arose out of a civil action for false imprisonment and malicious prosecution, but dealt with the circumstances in which the private citizen can make an arrest. The headnote reads as follows ([1914] 1 KB 595):

‘A private person is justified in arresting another on suspicion of having committed a felony if, and only if, he can show that the particular felony for which he arrested the other was in fact committed, and that he had reasonable and probable cause for suspecting the other of having committed it.’

In the course of the judgment by Isaacs CJ, reference was made ([1914] 1 KB 595 at 603, [1911–13] All ER Rep 170 at 173) to the common law historical origin of the law in Hale‘s Pleas of the Crown, where it was stated as follows (2 Hale PC (1800 edn) 77):

‘The third case is, there is a felony committed, but whether committed by B. or not, non constat, and therefore we will suppose that in truth it were not committed by B. but by some person else, yet A. hath probable causes to suspect B. to be the felon, and accordingly doth arrest him; this arrest is lawful and justifiable, and the reason is because if a person should be punished by an action of trespass or false imprisonment for an arrest of a man for felony under these circumstances, malefactors would escape to the common detriment of the people.’

But it is important to note that this passage follows:

[1992] 3 All ER 476 at 480

‘But to make good such a justification of imprisonment, 1. there must be in fact a felony committed by some person, for were there no felony, there can be [no] ground of suspicion.’

A footnote to the word ‘no’ in brackets refers back to the first edition of Hale in 1736, correcting a printer’s error to precisely the same effect.

Mention is made of the common law ancestry of the contents of the statute simply to deal with the arguments in misericordiam and ad absurdum advanced on behalf of the Crown pointing out the potential difficulties in which citizens may find themselves having every reason to believe that an offence is being committed when it has not or in circumstances where a jury subsequently acquits the person thought to have committed the offence.

However, in the judgment of this court, the words of s 24 do not admit of argument. Subsection (5) makes it abundantly clear that the powers of arrest without a warrant where an arrestable offence has been committed require as a condition precedent an offence committed. If subsequently there is an acquittal of the alleged offence no offence has been committed. The power to arrest is confined to the person guilty of the offence or anyone who the person making the arrest has reasonable grounds for suspecting to be guilty of it. But of course if he is not guilty there can be no valid suspicion, as was pointed out in the passage in Hale to which reference has been made.

If it is necessary to go further, one contrasts the words of sub-s (5) with sub-s (6), the very much wider powers given to a constable who has reasonable grounds for suspecting that an arrestable offence has been committed. However, it is said on behalf of the Crown that the court should not be assiduous to restrict the citizen’s powers of arrest and that, by going back to sub-s (4) and looking at the words there, ‘anyone who is in the act of committing an arrestable offence’, perhaps those words can be used to cover the sort of situation that arose in this case where somebody is apparently making good his escape. Having committed the offence of theft, can it be said, asks Mr Sleeman, that the thief is not in substance still committing the offence while running away?

He asks, rhetorically, should the court have to inquire into the exact moment when the ingredients of theft come together—dishonesty, appropriation, intention permanently to deprive—when to analyse the offence carefully may produce absurd results so that in one set of circumstances the offence may be complete and the situation fall within sub-s (5) and in another be still being committed and fall within sub-s (4).

The view of this court is that little profit can be had from taking examples and trying to reduce them to absurdity. The words of the statute are clear and applying those words to this case there was no arrestable offence committed. It necessarily follows that the two offences under s 38 of the Offences against the Person Act could not be committed because there was no power to apprehend or detain the appellant.

It follows also that that being the law, as this court sees it, that the convictions on counts 2 and 3 must be quashed and this appeal allowed.

Appeal allowed. Convictions quashed.

Kate O’Hanlon Barriste

• Crime – Evidence – Confession – Admissibility – Voir dire – Defendant cross-examined as to truth of statement and admitting participation in offence – Whether cross-examination proper – Statement ruled inadmissible – Crown adducing evidence of and cross-examining on defendant’s admissions in voir dire – Whether permissible

T. J. M