Davies v Director of Public Prosecutions

Lorp Stmonps L.C. My Lords, the House has heard
a full and careful argument from both sides, and I understand
that your Lordships agree with me in entertaining no doubt that
this appeal should be dismissed. As, however, some questions
of general principle have been raised on which the House may
deem it proper to pronounce, I propose to move now from the
Woolsack the dismissal of the appeal while the House takes

393

Ee(H2)
1954

Davis
O.
DIRECTOR
OF PUBLIO
PROSECU-
TIONS.

394 HOUSE OF LORDS [1954 |

H. L. (E.) time to consider such opinions on these general questions as it

1954 seems right to express.
DAVIES Th : fait
o. e House then voted that the appeal should be dismissed.
DrrECTOR
rh aa Feb. 19. Lorp Srmonps L.C. My Lords, this is an appeal

TIONS. from a judgment of the Court of Criminal Appeal, pursuant to the

ie fiat of the Attorney-General, who certified that the case raised a
point of law '' of exceptional public importance.'' The appellant
had, on October 22, 1958, been convicted of the murder on
Clapham Common of a youth called Beckley. He appealed to the
Court of Criminal Appeal and his appeal was dismissed by that
court on December 1, 1953, the court's reasons for its judgment
being delivered by Sellers J. three days later. On December 10
the Attorney-General gave his certificate. The appeal was heard
before your Lordships on January 12-15, 1954, the House, at the
close of argument, intimating their decision to dismiss the
appeal, but deferring till later their statement of their reasons for
doing so.

>?

Before coming to the facts I should refer to the course of
certain earlier proceedings. [His Lordship did so, and con-
tinued: ] The main ground of this appeal is that Lawson was
again called as a witness, but that Hilbery J. in his summing up
did not give the jury the warning which, it was said, was appro-
priate and necessary in relation to the evidence of a witness who
was, or might well be, an accomplice: that there was an inflexible
rule of law calling for such a warning: and that, as it was not
complied with, the conviction must be quashed. (There was a
second and subsidiary ground with which I will deal briefly
hereafter.)

Before dealing with the main contention I will summarize
shortly the evidence given at this trial. [His Lordship sum-
marized the evidence and continued:] It is manifest that this
evidence would, on a proper direction to the jury, have been
abundantly sufficient to support a verdict of guilty, there being
ample evidence that Davies possessed and produced a knife and
none that anyone else possessed one.

But it is said that there was not a proper direction, inasmuch
as Lawson was called and gave certain evidence; and Lawson
was an '' accomplice '' of Davies; and the judge gave no warning
that Lawson's evidence should be treated with corresponding
caution, It is not disputed that the judge gave no such warning.

A.C. AND PRIVY COUNCIL.

The judge, in his summing-up, dealt with Lawson's evidence
on pages 176-7 of the petition and record on the appeal and, as
indicated, did not warn the jury that that evidence was, or should
be treated as, the evidence of an accomplice. It is argued for the
appellant that this was misdirection—or, to use the exact language
of section 4 (1) of the Criminal Appeal Act, 1907, a '' wrong
"decision on a point of law.' It was not, nor could it, in my
view, be argued for the Crown that if this contention were right,
the conviction could nevertheless be upheld under the proviso to
that subsection on the ground that '' no substantial miscarriage of
'" justice '' had occurred :.viz., on the ground that if there had
been no such misdirection a reasonable jury must equally have
convicted. The evidence, if admissible, was not unimportant, and
the jury emerged from their retirement to ask the judge some
questions about it.

My Lords, I will recur later to certain other features of the
trial which appear indirectly relevant, but for the present will
proceed to deal with three problems raised by the main ground
of appeal, namely—(A) What is the scope and effect of the rule
that a judge ought to warn juries in connexion with the evidence
of an ''accomplice''? (B) What is an '' accomplice '' within
the rule? (C) Whatever be the true answers to these questions,
what (if any) is their application to the evidence of Lawson?

(A)—I do not propose to explore the remote historical origins

2?

of the rule, nor the old doctrine and practice of '' approvement."' _

It is clear that an accomplice is and was at all material times a
competent witness, and that a conviction based on his evidence,
though uncorroborated, could, and can today be supported: and

a judge may properly direct a jury that they are entitled if they |
choose to act on such uncorroborated evidence. But for over a.
century and a half it has been customary for judges to warn juries |
that it is dangerous to convict on such evidence, free though they .

are, if they find it wholly convincing, to do so. For most of that
period it has been laid down that such a warning was not a pre-
condition of a valid conviction, but was within the judge's dis-
cretion to give or to withhold: Rex v. Durham and Crowder'; Rex
v. Atwood and Robbins,? in which 12 judges, to whom the question
was referred, stressed the discretionary nature of any directions
given by the judge; Lord Ellenborough's observations in Rex v.
Jones*; Rex v. Sheehan*; Rex v. Farley,' where the warning

1 (1787) 1 Leach. C.C. 478. 4 (1826) Jebb C.C. 54, 56.
2 (1788) 1 Leach C.C. 464. 5 (1837) 8 C. & P. 106, 107.
3 (1809) 2 Camp. 131.

895

ECORI GDS |
1954

DAVIES
v.
DIRECTOR
or PUBLIC
PROSECU-
TIONS.

Lord Simonds
L.C.

396

lal MER (0d)
1954

DAVIES
v.
DIRECTOR
or PuBuio
PROSECU-
TIONS.

Lord Simonds
L.C.

HOUSE OF LORDS [1954 |

is referred to as ''a practice which deserves all the reverence
'"' of law ''; Reg. v. Boyes.®

My Lords, these authorities treat the rule as prescribing at
most a salutary and usual practice, to be followed or not, at the
judge's discretion: and the whole current of the decisions until
the 20th century is in this sense. But after the enactment of the
Criminal Appeal Act in 1907, what was no more than a
' practice '' manifests an increasing tendency to assume the hard
lineaments of a rule of law: and as such, many of the decisions
of the Court of Criminal Appeal, especially since Rex v. Basker-
ville,' treat it. But in other decisions of the same court the older,
the "' discretionary '' view still finds expression. A great many
authorities were cited to your Lordships. It will be sufficient
for the purpose of illustrating the dualism to which I have called
attention, to cite relatively few. If I may summarize their effect
in advance, I would say that the "' discretionary '' school of
thought is illustrated by such authorities as Rex v. Tate*® and
Rex v. Moore,*® and the '' peremptory '' school of thought (if for
brevity I may so call it) by decisions such as Rew v. Davies '°;
Rex v. Lewis,'? and Rex v. Farid }?; and subject to certain
qualifications which I will indicate when dealing with it, the case
of Rex v. Baskerville }° itself.

Rex v. Tate * was the earliest of this series being, indeed,
decided shortly after the Court of Criminal Appeal was established.
In that case the court quashed the conviction for want of a
warning to the jury as to the need for corroboration of the evidence
of an accomplice: but added that if there has been in fact enough
corroboration, this would have excused the want of a warning and
justified the maintenance of the conviction. It has been
suggested that this last observation was obiter, and the same
suggestion may be made in regard to some of the decisions the
other way.

In Rex v. Moore,'® however, the observation was not
regarded as obiter, and again the existence of sufficient corrobora-
tion in fact was regarded as an adequate substitute for compliance
with the rule.

In 1916—between these cases—Baskerville's case}® was

6 (1861) 1B. & §. 311. 12 (1945) 173 L.T. 68; 30 Cr.App.
7 [1916] 2 K.B. 658. R. 168.

8 [1908] 2 K.B. 680. 13 [1916] 2 K.B. 658.

9 (1942) 28 Cr.App.R. 111. 14 [1908] 2 K.B. 680.

10 (1930) 22 Cr.App.R. 33. 15 98 Cr.App.R. 111.

11 (1937) 158 LT. 454; 26 Cr.App. 16 [1916] 2 K.B. 658.

R. 110; [1937] 4 All E.B. 360.

A.C. AND PRIVY COUNCIL.

decided. The point directly in issue in that case was not what
consequences flowed from the omission to give a warning. A

warning, and a more than sufficient one, had ex concessis been ~

given: and the only question directly for decision was whether
there existed evidence which could amount to the corroboration
for which the warning called. The court held that it did. The
judgment, however, went much outside the immediate issue
raised, in an attempt to quiet doubts and settle the law.

In this sphere of general principle the following passages from
the judgment of a court which commands high respect (Lord
Reading C.J., Scrutton, Avory, Rowlatt and Atkin JJ.) delivered
by Lord Reading C.J., are relevant 17:—'' There is no doubt that
""the uncorroborated evidence of an accomplice is admissible in
"law (see Rea v. Atwood'8). But it has long been a rule of
"" practice at common law for the judge to warn the jury of the
"" danger of convicting a prisoner on the uncorroborated testimony
""of an accomplice or accomplices, and, in the discretion of the
"judge, to advise them not to convict upon such evidence; but
"* the judge should point out to the jury that it is within their legal
"" province to convict upon such unconfirmed evidence (Reg. v.
"* Stubbs 1°; In re Meunier *°). This rule of practice has become |
'virtually equivalent to a rule of law, and since the Criminal,
"* Appeal Act came into operation this court has held that, in the

<

'" absence of such a warning by the judge, the conviction must be |

""quashed.'' For this last proposition Rex v. Tate *! is cited but
does not support it, for in Rex v. Tate,?! as has been observed
above, the court would not have quashed the conviction, even
in the absence of a warning, if there had been sufficient corrobora-
tion in fact. I continue to quote from Baskerville's case ** :—
'In Rex v. Everest ?* the court said: ' The rule has long been
"** established that the judge should tell the jury to acquit the
"** prisoner if the only evidence against him is that of an accom-
"** nlice, unless that evidence is corroborated in some particular
'* "which goes to implicate the accused.' We think " tell the jury
***to acquit' should read 'warn the jury of the danger of

'"*convicting.''' Finally, Lord Reading said **: "' If the judge
'* failed to give the warning, this court would be bound to set aside
''the conviction.'' These words, though they carry weight,

17 [1916] 2 K.B. 658, 663.
18 ] Leach C.C. 464.

[1908] 2 K.B. 680.
[1916] 2 K.B. 658, 668.
19 (1855) Dears. 555. (1909) 2 Cr.App.R. 130, 132,
20 [1894] 2 Q.B. 415. [1916] 2 K.B. 658, 670.

A.C. 1954, 27

wb b&

ow =

to
~

397

H. L. (&.)
1954

DAVIES
Uv.
DIRECTOR
oF PUBLIC
PROSECU-
TIONS.

Lord Simonds
Lic?

398 HOUSE OF LORDS [1954 |

H. L. (E.) having regard to their source, were unnecessary to the decision,

1954 as indeed were certain other parts of the judgment.
wie Baskerville's case,?> however, when every allowance has been
v. made for the possibility that part of it is obiter, undoubtedly
DIRECTOR 6 ,

or Pusrig Supports the proposition that the rule is '' peremptory '' and a

a breach of it incurable. There is no reference in Baskerville's

case *° itself to the proviso to section 4 (1).

Lord Simonds f 6 4 : 9
L.C. The view which it propounded was adopted in Rex v. Lewis *°

subject to the possible operation of the proviso to section 4 (1) of
the Criminal Appeal Act. In that case the Court of Criminal

Appeal decided that, if the warning be omitted, the conviction can
only stand if there exists corroborative evidence of such a convinc-
ing, cogent and irresistible character that '' the jury,'' if they had
received the proper warning, must have come to the same con-
clusion. The court found itself unable to say, in that case, that
"the jury '' must inevitably have come to the same conclusion,
and consequently quashed the conviction.

The case, decided a few years earlier, of Rex v. Davies?'
qualifies the principle later applied in Rex v. Lewis ?* to this
extent, that even though the summing-up omitted any express
warning as to accomplice evidence, the conviction could be sup-
ported in a case in which "from first to last, the case was
""ceonducted on the footing that the issue was whether the
"" evidence of the bankrupt and his wife was confirmed by other
'" evidence,'' and counsel for the appellant at the appeal admitted
that counsel who appeared for the appellant at the trial did refer
to the evidence of these witnesses as that of accomplices. This
being so, the Court of Criminal Appeal was of opinion that "' the
"jury '' would inevitably have arrived at the same conclusion
if an express warning had been given by the judge.

If these two decisions are right in substance yet each is
subject, in my judgment, to this corrigendum, namely, that for
""the jury '' should be read "' a reasonable jury.'' No appellate
court can tell what a particular jury would have decided in cir-
cumstances which did not occur.

Two other cases were cited to us—Rex v. Rudd ?® and Rez v.
Garland *°: but these cases concern the proper procedure as to
warning and the like where one co-defendant gives evidence

25 [1916] 2 K.B. 658. 29 (1948) (64 (T..R. 240;'32 Cr.
26 158 L.T. 454; 26 Cr.App.R. 110. App.R. 545.
27 99 Cr.App.R. 33, 35. 80 (1941) 29 Cr.App.R. 46.

2

oo

158 L.T. 454; 26 Cr.App.R. 110.

A.C. AND PRIVY COUNCIL.

implicating another—a case with which your Lordships are not
troubled here.

The only decision of your Lordships' House in which the rule
as to accomplices' evidence is touched on is Rex v. Christie,*4
where Lord Atkinson's observations, inclining to the '' discre-
"tionary '' view, were plainly unnecessary to the decision, the
evidence in dispute not being that of any accomplice, and the law
as to accomplices' evidence only introduced as an analogy.

My Lords, having indicated the rival versions of the rule as
to warning propounded in Tate's®? and Moore's case ** on the
one hand, and the cases of Baskerville,*4 Davies *®> and Lewis *¢
on the other, I have formed the opinion that whichever might
be preferred if the matter were res integra, as things are the
latter cases, laying down the stricter rule, have the preponderant
weight of authority on their side, and should be adopted by your
Lordships on this appeal. The true rule has been, in my view,
accurately formulated by the appellant's counsel in his first three
propositions, more particularly in the third. These propositions
as amended read as follows :—

"* First proposition :
*"In a criminal trial where a person who is an accomplice

'* gives evidence on behalf of the prosecution, it is the duty of the 4,
'judge to warn the jury that, although they may convict upon | |

'"his evidence, it is dangerous to do so unless it is corroborated.
"" Second proposition :

''This rule, although a rule of practice, now has the force of

"a rule of law.
'" Third proposition :

'' Where the judge fails to warn the jury in accordance with
'this rule, the conviction will be quashed, even if in fact there
''be ample corroboration of the evidence of the accomplice,
''unless the appellate court can apply the proviso to section
'* 4 (1) of the Criminal Appeal Act, 1907."

The rule, it will be observed, applies only to witnesses for the
prosecution.

The remaining questions, therefore, on the main issue are—
(B) and (C)—What is an "' accomplice '' within the rule? And

31 [1914] A.C. 545; sub nom. 33 98 Cr.App.R. 111.
Director of Public Prosecutions v. 4 [1916] 2 K.B. 658.
Christie, 80 T.L.R. 471. 5 99 Cr.App.R. 33.
32 [1908] 2 K.B. 680. 6 158 L.T. 454; 26 Cr.App.R. 110.

wo &

399

Ene Tu. (is)
1954

DAVIES
v.
DIRECTOR
oF PUBLIC
PROSECU-
TIONS.

Lord Simonds
VCE

400 HOUSE OF LORDS [1954 |

H. L. (E.) has the rule, on the proper construction of the word "' accom-

1954 '"'plice'' contained in it, any application to Lawson in the
9
Davies present Caney « a
v. There is in the authorities no formal definition of the term
D HOT ' kd Med .
eee '' accomplice '': and your Lordships are forced to deduce a

carl meaning for the word from the cases in which X, Y and Z have

: been held to be, or held liable to be treated as, accomplices. On
the cases it would appear that the following persons, if called
as witnesses for the prosecution, have been treated as falling
within the category :—

(1) On any view, persons who are participes criminis in
respect of the actual crime charged, whether as principals or
accessories before or after the fact (in felonies) or persons com-
mitting, procuring or aiding and abetting (in the case of misde-
meanors). This is surely the natural and primary meaning of the
term '' accomplice.'' But in two cases, persons falling strictly
outside the ambit of this category have, in particular decisions,
been held to be accomplices for the purpose of the rule: viz.:

(2) Receivers have been held to be accomplices of the thieves
from whom they receive goods on a trial of the latter for larceny
(Rex v. Jennings *": Rex v. Dixon **):

(3) When X has been charged with a specific offence on a
particular occasion, and evidence is admissible, and has been
admitted, of his having committed crimes of this identical type
on other occasions, as proving system and intent and negativing
accident; in such cases the court has held that in relation to such
other similar offences, if evidence of them were given by parties
to them, the evidence of such other parties should not be left
to the jury without a warning that it is dangerous to accept
it without corroboration. (Rex v. Farid *°).

In both of these cases (2) and (8) a person not a party or
not necessarily a party to the substantive crime charged was
treated as an accomplice for the purpose of the requirement of
warning. (I say ''not necessarily' to cover the case of
receivers. A receiver may on the facts of a particular case have
procured the theft, or aided and abetted it, or may have helped
to shield the thief from justice. But he can be a receiver without
doing any of these things.) The primary meaning of the term
'" accomplice,'' then, has been extended to embrace these two
anomalous cases. In each case there are special circumstances

Lord Simonds
L.C.

37 (1912) 7 Cr.App.R. 242. 89 (1945) 380 Cr.App.R. 168.
$8 (1925) 19 Cr.App.R. 36.

A.C. AND PRIVY COUNCIL.

to justify or at least excuse the extension. A receiver is not only
committing a crime intimately allied in character with that of
theft: he could not commit the crime of receiving at all without
the crime of theft having preceded it. The two crimes are in
a relationship of '' one-sided dependence. In the case of
" system,'' the requirement of warning within the special field
of similar crimes committed is a logical application within that
collateral field of the general principle, though it involves a
warning as to the evidence of persons not accomplices to the
substantive crime charged.

My Lords, these extensions of the term are imbedded in our
ease law and it would be inconvenient for any authority other
than the legislature to disturb them. Neither of them affects
this case. Lawson was not a receiver, nor was there any question

2?

of "' system ''; Lawson, if he was to be an accomplice at all'
had to be an accomplice to the crime of murder. I can see no.
accomplice.'' In)
particular, I can see no reason why, if half a dozen boys fight.
another crowd, and one of them produces a knife and stabs one

oe

reason for any further extension of the term

of the opponents to death, all the rest of his group should be

treated as accomplices in the use of a knife and the infliction of |

mortal injury by that means, unless there is evidence that the
rest intended or concerted or at least contemplated_an attack
with a knife by one of their number, as opposed to a common
assault. If all that was designed or envisaged was in fact a
common assault, and there was no evidence that Lawson, a party
to that common assault, knew that any of his companions had a
knife, then Lawson was not an accomplice in the crime consisting
in its felonious use. It should be borne in mind in this connexion
that all suggestion of a concerted felonious onslaught had, by
consent at the instance of counsel for the defence himself, been
expunged from the Crown's case and from the issues put to the
jury. Your Lordships would, I feel, be slow to permit counsel
for the defence, having got that suggestion buried, to disinter
it for the purpose of suggesting that Lawson was constructively
an accomplice to the crime of murder and for that reason
attracted the rule as to warning.

My Lords, I have tried to define the term '' accomplice.''
The branch of the definition relevant to this case is that which
covers '' participes criminis'' in respect of the actual crime
charged, '' whether as principals or accessories before or after
''the fact.'' But, it may reasonably be asked, who is to decide,
or how is it to be decided, whether a particular witness was a

401

13 IT KES2):
1954

DAVIES
v.
DIRECTOR
or PuBuic
PROSECU-
TIONS.

Lord Simonds
L.C.

402 HOUSE OF LORDS [1954 |

'

H. L. (E.) '' particeps criminis''' in the case in hand? In many or most

1954 cases this question answers itself, or, to be more exact, is

ea: participation, by pleading guilty to it, or by being convicted of
Pea it. But it is indisputable that there are witnesses outside these
Prosgcv- straightforward categories, in respect of whom the answer has
TIONS. :
to be sought elsewhere. The witnesses concerned may never have
Lord Simonds confessed, or may never have been arraigned or put on trial, in
are respect of the crime involved. Such cases fall into two classes.
In the first, the judge can properly rule that there is no evidence
that the witness was, what I will, for short, call a participant.
The present case, in my view, happens to fall within this class,
and can be decided on that narrow ground. But there are other}
cases within this field in which there is evidence on which a)'
reasonable jury could find that a witness was a "' participant.''|
In such a case the issue of '' accomplice vel non'"' is for the),
jury's decision: and a judge should direct them that if they |
consider on the evidence that the witness was an accomplice, it
is dangerous for them to act on his evidence unless corroborated :} '
though it is competent for them to do so if, after that warning,
they still think fit to do so. The delimitation which I have out-
lined as proper, between the provinces of judge and jury in this
particular matter, seems to me to be supported both by English
authority and by Dominion decisions (e.g., Rex v. Dixon,* Reg.
v. Abigail and Macnamara'*!; Rex v. Reeve and Others 42; Rex
v. McGonald*?; and cf. Corpus Juris Secundum, vol. 22,
para. 797).
This disposes of the main ground of the appeal.

answered by the witness in question himself, by confessing to

There was a second ground, very shortly and faintly argued,
which can be dismissed in a few words. It was said that it was
improper for the evidence of Superintendent Davies to be
admitted, to the effect that in a very large number of state-
ments (I think 200) made to him there was no allegation that
anyone but the appellant possessed a knife. It is a sufficient
answer to this that it was counsel for the appellant himself who
cross-examined Superintendent Davies about the sufficiency and
result of these inquiries. He was anxious to discover whether
any of these statements contained any allegation of the posses-
sion by other members of the Davies group of a knife or knives;
his interrogation was directed to this purpose; and he cannot

40 (1925) 19 Cr.App.R. 36. 42 (1917) 17 St.R.N.S.W. 81.
41 (1893) 14 N.S.W.L.R. 72. 43 [1945] 3 D.L.R. 769.

A.C. AND PRIVY COUNCIL.

complain if the Superintendent returned negative replies. The
fact that the questions were put made the replies admissible
if they were not otherwise so. Moreover, no objection was taken
at the time to his answers.

My Lords, I think you will agree that this appeal has been
most ably argued on both sides. There was certainly no conten-
tion open to counsel for the appellant to which he did not do full
justice. Nevertheless, for the reasons I have now given, your
Lordships were constrained to dismiss the appeal.

Lorp Porter. My Lords, I concur in the opinion that has
just been expressed.

Lorp Oaxsry. My Lords, I concur.

Lorp Tucxer. My Lords, I concur.

Lorp Asquity or Bisnorpstonge. My Lords, I also concur.
Appeal dismissed.