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

A group of men attacked the manager of a massage parlour. They killed him and wounded two others. The defendant was one of six charged with murder and malicious wounding. The only evidence connecting him with the attack was his own signed statement given to the police to the effect that he had been present at the scene and had there “chopped” someone with a knife. At the start of the trial the defence challenged the admissibility of the statement on the ground that it had not been made voluntarily. The judge dealt with that issue in the absence of the jury by a voir dire. The defendant gave evidence on the voir dire and testified that he had made the statement but had not been cautioned, that the police had offered inducements to him to make it and that he had been forced to copy out and sign it. Cross-examined by the Crown the defendant admitted that he had been present at the scene and involved in the attack. The judge ruled the statement inadmissible. The trial of the general issue continued and in order to establish that the defendant had been at the scene counsel for the Crown called the two shorthand writers who had recorded the voir dire to testify that in that proceeding the defendant had admitted being

[1980] A.C. 247 Page 248

present. The defence objected. The judge ruled that the shorthand writers’ testimony was admissible and rejected a submission that there was no case for the defendant to answer. The defendant gave evidence and was cross-examined as to discrepancies between his evidence and what he had said at the voir dire. The defendant was convicted of murder and malicious wounding. The Court of Appeal dismissed his appeal against conviction.

On the defendant’s appeal to the Judicial Committee: –

Held, allowing the appeal, (1) (Lord Hailsham of St. Marylebone dissenting) that on a voir dire as to the admissibility of a defendant’s challenged statement the prosecution should not ask questions in cross-examination of the defendant with the object of establishing the truth of the statement and that accordingly the Crown’s cross-examination on the voir dire was improper (post, pp. 256A-C, 257B-C).

Rex v. Hammond [1941] 3 All E.R. 318, C.C.A. wrongly decided.

Reg. v. Hnedish (1958) 26 W.W.R. 685 approved.

(2) That, where on a voir dire a defendant’s statement had been ruled inadmissible, the prosecution was not entitled at the trial of the general issue to adduce evidence as to what the defendant said during the voir dire or to cross-examine him on the basis of what he said; that, accordingly, the calling of the shorthand writers and the Crown’s cross-examination were substantial irregularities which resulted in evidence being wrongly placed before the jury without which they could not have convicted and that, therefore, the defendant’s convictions on all counts should be quashed (post, pp. 258D-E, 259E-F, 260C-F, 261B-G).

Rex v. Treacy [1944] 2 All E.R. 229, C.C.A. applied.

Per curiam. Where an impugned confession is ruled admissible and the defendant elects to give evidence on the general issue testifying as to the reliability of the confession (as opposed to its voluntariness) and in so doing gives answers markedly different from his testimony on the voir dire there is no justification in legal principle or any other ground which renders cross-examination on the basis of the discrepancies impermissible (post, pp. 259F – 260A).

Decision of the Court of Appeal of Hong Kong reversed.

The following cases are referred to in the judgments:

Chan Wei Keung v. The Queen [1967] 2 A.C. 160; [1967] 2 W.L.R. 552; [1967] 1 All E.R. 948, P.C.

Chitambala v. The Queen [1961] R. & N. 166.

DeClercq v. The Queen (1968) 70 D.L.R. (2d) 530.

Director of Public Prosecutions v. Ping Lin [1976] A.C. 574; [1975] 3 W.L.R. 419; [1975] 3 All E.R. 175, C.A. and H.L.(E.).

Ibrahim v. The King [1914] A.C. 599, P.C.

Li Kim-hung v. The Queen [1969] H.K.L.R. 84.

Ng Chun-kwan v. The Queen [1974] H.K.L.R. 319.

Reg. v. Hnedish (1958) 26 W.W.R. 685.

Reg. v. Wright [1969] S.A.S.R. 256.

Rex v. Hammond [1941] 3 All E.R. 318; 28 Cr.App.R. 84, C.C.A.

Rex v. Treacy [1944] 2 All E.R. 229; (1944) 30 Cr.App.R. 93, C.C.A.

[1980] A.C. 247 Page 249

The following additional cases were cited in argument:

Harris v. Director of Public Prosecutions [1952] A.C. 694; [1952] 1 All E.R. 1044, H.L.(E.).

Jeffrey v. Black [1978] Q.B. 490; [1977] 3 W.L.R. 895; [1978] 1 All E.R. 555, D.C.

Reg. v. Abbott [1955] 2 Q.B. 497; [1955] 3 W.L.R. 369; [1955] 2 All E.R. 899, C.C.A.

Reg. v. Erdheim [1896] 2 Q.B. 260.

Reg. v. Garside (1967) 52 Cr.App.R. 85, C.A.

Reg. v. Gauthier (1975) 27 C.C.C. (2d) 14.

Reg. v. Harz; Reg. v. Power [1967] 1 A.C. 760; [1967] 2 W.L.R. 297; [1967] 1 All E.R. 177, H.L.(E.).

Reg. v. McGregor [1968] 1 Q.B. 371; [1967] 3 W.L.R. 274; [1967] 2 All E.R. 267, C.A.

Reg. v. Murphy [1965] N.I. 138. Ct.-M.A.C.

Reg. v. Rice [1963] 1 Q.B. 857; [1963] 2 W.L.R. 585; [1963] 1 All E.R. 832, C.C.A.

Reg. v. Roberts (1953) 37 Cr.App.R. 86.

Reg. v. Van Dongen (1975) 26 C.C.C. (2d) 22.

Reg. v. Wray (1970) 4 C.C.C. 1.

Rex v. Power [1919] 1 K.B. 572, C.C.A.

Wan v. United States (1924) 266 U.S. 1.

LORD HAILSHAM OF ST. MARYLEBONE delivered the following dissenting judgment.

I regret that for the reasons which follow there is a substantial portion of the advice of the majority in this case from which I must respectfully record my dissent.

I wish to begin, however, by making it plain that I entirely endorse the result proposed. This is because I entirely agree with the proposed answer to the third of the questions posed by counsel for the defendant and referred to in the advice of the majority, and this is sufficient to dispose of the whole appeal. I also agree with both parts of the proposed answer to the fifth question. Once a statement has been excluded I consider that, to adapt the words of Humphreys J. in Rex v. Treacy

[1980] A.C. 247 Page 261

[1944] 2 All E.R. 229, nothing more should be heard of the voir dire unless it gives rise to a prosecution for perjury.

I have stated elsewhere (Director of Public Prosecutions v. Ping Lin [1976] A.C. 574) that the rule, common to the law of Hong Kong and that of England, relating to the admissibility of extra-judicial confessions is in many ways unsatisfactory, but any civilised system of criminal juris-prudence must accord to the judiciary some means of excluding confessions or admissions obtained by improper methods. This is not only because of the potential unreliability of such statements, but also, and perhaps mainly, because in a civilised society it is vital that persons in custody or charged with offences should not be subjected to ill treatment or improper pressure in order to extract confessions. It is therefore of very great importance that the courts should continue to insist that before extra-judicial statements can be admitted in evidence the prosecution must be made to prove beyond reasonable doubt that the statement was not obtained in a manner which should be reprobated and was therefore in the truest sense voluntary. For this reason it is necessary that the defendant should be able and feel free either by his own testimony or by other means to challenge the voluntary character of the tendered statement. If, as happened in the instant appeal, the prosecution were to be permitted to introduce into the trial the evidence of the defendant given in the course of the voir dire when the statement to which it relates has been excluded whether in order to supplement the evidence otherwise available as part of the prosecution case, or by way of cross-examination of the defendant, the important principles of public policy to which I have referred would certainly become eroded, possibly even to vanishing point.

I also agree with the opinion of the majority that when and if the statement has been admitted as voluntary and the prosecution attempt to cross-examine a defendant on discrepancies between his sworn testimony on the voir dire and his evidence on the general issue at the trial, rather different considerations apply. By the time that evidence is given the statement will have been admitted on the ground that the prosecution has succeeded in establishing to the satisfaction of the judge beyond reasonable doubt that it was properly obtained, and the whole evidence relating to the statement will have to be rehearsed once more, this time in front of the jury (where there is one) in order that they may form a conclusion not as to its admissibility but as to the reliability of the admissions made. It seems to me that in those circumstances the statements on oath by the defendant on the voir dire as material for cross-examination do not, from the point of view of public policy, stand in any other situation than any other statements made by him, including the statement which has been admitted. For this purpose the true analogy is the position of his sworn testimony in a previous trial where the jury have disagreed. No doubt the trial judge has a discretion to see that the right of the prosecution to cross-examine or rebut is not used in a manner unfair or oppressive to the defendant, and no doubt the judge is under a strict obligation to see that any statutory provisions (for instance those in the Criminal Evidence Act 1898 or its Hong Kong equivalent) are rigorously complied with. But, in my view, once the substantive

[1980] A.C. 247 Page 262

statement is admitted on the voir dire, the fewer the artificial rules limiting the admissibility of evidence which may be logically probative the better. I therefore agree with both parts of the advice tendered by the majority to the fifth of the questions propounded by counsel in argument.

The reservations I feel about the opinion of the majority in this case are therefore confined to the views they express in relation to questions (1) and (2). In order to avoid prejudice to the defendant the voir dire normally takes place in the absence of a jury. It is therefore a trial on an issue of fact before a judge alone. It is open to the defendant (presumably under the provisions of the Criminal Evidence Act 1898 or its Hong Kong equivalent) to give evidence and there are limits imposed by that Act or the equivalent Ordinance on what may be asked him in cross-examination. Subject to these limitations, and to any other general rules of evidence (such as those relating to hearsay) it seems to me that the only general limitations on what may be asked or tendered ought to be relevance to the issue to be tried, as in any other case in which an issue of fact is to be tried by a judge alone, and as to this, subject to appeal, the judge is himself the arbiter on the same principles as in any other case in which he is the judge of fact. It appears to be the opinion of the majority that it is possible to say a priori that in no circumstances is the truth or falsity of the alleged confession relevant to the question at issue on the voir dire or admissible as to credibility of either the prosecution or defence witnesses. I disagree. It is common ground that the question at issue on the voir dire is the voluntary character of the statement. This is the factum probandum, and, since the burden is on the prosecution, the prosecution evidence is taken before that of the defence. The voir dire may take place, as in the instant appeal, at the beginning of the trial, when all that is known of the facts must be derived from the depositions, or from counsel’s opening. More frequently, however, the voir dire takes place at a later stage in the trial when the prosecution tenders the evidence, usually of the police, in support of the voluntary character of the statement. By that time many facts are known and much of the evidence has been heard. I can conceive of many cases in which it is of the essence of the defence case on the voir dire that the confession, whose voluntary character is in issue, is in whole or part untrue, and, it may be, contrary to admitted fact. If the defence can succeed in establishing this or even raising a serious question about it either as the result of cross-examining the prosecution witnesses, or by evidence led by the defence itself, serious doubt can be raised as to the voluntary nature of the confession. How can it be said, counsel for the defence might wish to argue, that the defendant can have provided so much inaccurate information to his own detriment, unless he was forced to do so by some improper means? If the defence can be allowed to make the point, which seems to me to be a valid one, it must be open to the prosecution to cross-examine upon it when it is the turn of the defence witnesses to be scrutinised. It must be remembered that it is frequently the case that the alleged confession is not always, as in the instant appeal, a written statement copied out in the writing of the defendant. though the point can arise even in such a case. Often, perhaps more often, the statement in question may have been oral,

[1980] A.C. 247 Page 263

and the case on the voir dire for the defence may be that it was obtained only after a long period in custody, perhaps without rest, food, or drink, as the result of a long and harassing interrogation at which either no caution was administered or improper pressures were brought to bear. In such circumstances it seems to me inevitable that the truth or otherwise of what is alleged to have been said, and what was actually said in response to what questions or the accuracy of what is alleged to have been copied down in the police notebooks (and the questions though logically separate are often difficult to separate in practice) must be investigated in order to establish, or cast doubt upon, the voluntary character of the confession. I am the first to deprecate what counsel for the Crown, who has a wide experience of current practice at the Central Criminal Court and elsewhere, admitted without justifying, to be a growing habit of counsel for the prosecution, namely to begin his cross-examination on the voir dire in every case with a question directed to the truth or otherwise of the confession. Though I tend to regard the use made in the advice of the majority of the passage in Heydon, Cases and Materials on Evidence (1975), p. 181, as an example of the fallacy known as ignorantia elenchi, I agree with them that it is no answer when the admissibility of an alleged confession has been challenged on the ground that it was improperly obtained, that it was a confession of the truth and not the reverse. But the counsel for the prosecution may be entitled to know the exact limits of the case he has to meet. Has he to answer the suggestion that the confession is more likely to be involuntary because it was so contrary to fact? Can he himself rely on the argument that it is inconceivable that a detailed albeit admittedly truthful confession of a really serious crime, as for instance murder, was elicited as the result of a relatively trivial inducement such for instance as being allowed to see a close relative for a short time? I am wholly unable to see that these are not questions and arguments which can in particular cases have a bearing on the voluntary or involuntary character of statements tendered in evidence by the prosecution and therefore, in suitable cases, investigated at the voir dire. Disputes not infrequently occur on the voir dire not merely as to the facta probanda but as to what was said and at what stage (e.g. before or after a caution) and though a voir dire is not required at all when the defence case is that no statement of any sort was made, the more usual situation at the voir dire is that what is in dispute between the parties is not merely whether what was said was voluntary (the factum probandum) on the voir dire or whether anything was said (a question for the jury, and not the judge) but exactly what was said and in what circumstances and at what point of time, and as the result of what inducement if any (facta probantia or reprobantia. but not probanda). For these questions, which must be investigated before a judge admits a statement on the voir dire, it seems to me impossible to say a priori that every question of truth or falsity of the statements must be excluded, and although I agree that in the ultimate resort the questions will be for the jury if the statement is admitted, the judge may often be in a position when he is compelled to form an opinion as to the relative reliability of rival versions of what took place in order to form an opinion as to whether what was said was said voluntarily or as the consequence of inducement.

[1980] A.C. 247 Page 264

An example of another kind is where the prosecution case is that a statement was originally volunteered orally and subsequently signed voluntarily by the accused, and the case for the accused is that the statement was concocted by the police, written down by the police and then signed by the accused under improper pressures. In this case the prosecution may wish to say that details in the alleged concoction could only have come from the accused and were accurate facts not otherwise known at the time, and the accused may wish to point to inaccuracies in the statement as pointing to concoctions. In each case, although not directly affecting the allegation of signature under pressure, the accuracy or otherwise of the contents of the confession must be open to some inquiry on the voir dire. Obviously the judge must be allowed a discretion in the matter. He must not permit counsel to pursue the matter of the truth or falsity of items in a confession for an ulterior reason or in an oppressive manner, or at undue length, but I am not able to say a priori that all must necessarily be irrelevant. I am somewhat fortified in this view by the reflection that if the voir dire is decided in favour of the prosecution, almost all of the evidence given is repeated at the trial of the general issue, where the factum probandum is guilt or innocence and not the voluntary or involuntary character of the statement admitted. Contrary, I believe, to what is suggested at one point in the majority opinion, the jury are absolutely free to form their own view of the circumstances in which the statement was obtained irrespective of the opinion of the judge (as to which in theory at least they are wholly ignorant) in order to form their own opinion as to the facts relied on by the prosecution or the defence on the general issue. Though the judge has found the confession to be voluntary, and therefore admissible, the jury is perfectly entitled to act on the contrary belief and therefore to disregard it as unreliable. It is of course not logically necessary that the converse of this position is also true, namely, that the judge can be assisted by his view of the truth or otherwise of the material contained in an alleged statement in order to determine whether the statement is wholly voluntary or not. In many cases no doubt (Rex v. Hammond [1941] 3 All E.R. 318 was one), the judge will be wholly uninfluenced in his decision by whether the confession contained accurate or inaccurate material and in such a case either the question is improper, or the answer irrelevant. But I am not prepared to say a priori that in all cases it must always be so. In my opinion questions of relevance or otherwise can only seldom be decided a priori, as in my view the opinion of the majority purports to do, but are far better left to the logical faculties of the trial judge in the context of the concrete case which he has to try. For these reasons I would give different answers to questions (1) and (2) to those proposed by the majority. I agree with their answers to questions (3) and (4) and to both aspects of (5) and that the appeal must in consequence be allowed.

Solicitors: Hatchett, Jones & Kidgell; Charles Russell & Co.

T. J. M