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Victims and other exempt parties in crime

Published online by Cambridge University Press:  02 January 2018

Glanville Williams
Glanville Williams*
Affiliation:
Jesus College, Cambridge
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Extract

The law of complicity and conspiracy should neither be used nor be capable of being used to subvert the intentions of Parliament when it framed offences. To explain the ramifications of this simple message will take a little space.

The law of complicity and conspiracy is wide, but it is well known, and normally the legislature may fairly be presumed to intend it to apply to new edicts unless it is expressly excluded. Occasionally, however, the court may feel able to collect from the statute a legislative policy exempting from responsibility people who would otherwise have been accomplices or conspirators.

Type
Research Article
Information
Legal Studies , Volume 10 , Issue 3 , December 1990 , pp. 245 - 257
Copyright
Copyright © Society of Legal Scholars 1990

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References

1 A rare and welcome example of express exclusion of complicity is the Motor Cycle Crash-Helmets (Restriction of Liability) Act 1985. Needless to say, this was a private member's measure; a government department would never have sponsored such a thing.

2 Tyrrell (1894) 1 QB 710. The present legislation is the Sexual Offences Act 1956, ss 5,6, as amended.Google Scholar

3 The victim rule has been recognised by statute in connection with conspiracy. See later. For another possible instance of the rule see Grace Rymer Investments v Waite (1958) Ch at 845–846.

4 A girl under 16 can logically be convicted of indecent assault upon a youth under 16 in respect of acts done while copulating. It may be assumed that she would not be charged with this.

5 A youth under 14 cannot perpetrate buggery, any more than rape, and for the same spurious reason: he is supposed to be impotent.

6 (1921) 15 Cr App R 132. For the earlier authorities see my article in (1964) Crim Lr 686.Google Scholar

7 Law Corn No 177.

8 Sexual Offences Act 1936, s 30(1).Google Scholar

9 Williams, , Textbook of Criminal Law (2nd edn) 336 n 9. See also the argument in the same place on the construction of Sexual Offences Act 1956, s 36.Google Scholar

10 Murphy (1981) 21 CR (3d) 39, esp at 52, 54–55.Google ScholarPubMed

11 Street Offences Act 1959, s 1(1).Google Scholar

12 See the Wolfenden Report, Cmnd 247 of 1957, Part III.

13 In Sneddon v Stevenson (1967) 2 All Er 1277, 1 Wlr 1051, the argument was advanced, but foundered because the man was a police officer.Google Scholar

14 [1977) QB 868.Google Scholar

15 For a similar reason, Sockett (1908) 1 Cr App R 101, 72 JP 428, 24 TLR 893, appears to be wrongly decided. See Williams, op cit, 366 n 11.Google Scholar

16 I suggested this approach to these problems 37 years ago (Criminal Law: The General Part, 1st edn, 1953, 2nd edn 5 121), but so far as the Law Commission and Parliament are concerned the suggestion has fallen on stony ground.

17 The reasons of policy are elaborated in (1989) Crim LR 473.

18 Austin (1981) 1 All ER 374, 72 Cr App R 104, approved in Burns (1984) 79 Cr App R 173.Google Scholar

19 Supra, n 18. How the evidence of the defendant's previous offences got in does not appear; presumably the evidence was given after conviction. But the CA relied on it in support of its judgment dismissing the appeal.

20 (1890) 24 QBD 420. See Parliamentary Debates, H of L, vol 380, cols 169 –171.Google Scholar

21 The decision in Whitchurch can be explained by reference to the later case of Sockett, n 15 above, where it was held that such a woman could be accessory to her own abortion. Clearly, a person can conspire to commit an offence where he would be liable as accessory to the offence. It may be doubted, however, whether Sockett was correctly decided. The court might well have discovered a legislative intention to exempt the non-pregnant woman. Even so, she may now be convicted of conspiracy by reason of the unhappy wording of the Criminal Law Act: see below.

22 Parliamentary Debates, H of L, vol 380, cols 563–564.Google Scholar

23 The Draft Code, cl 48(4) very properly alters this wording to accord with cl 29(7) (quoted in the text at n 7), and thus to make it clear that the victim rule is derived from the policy of the particular statute before the court.

24 Text above at n 10.