R v Baskerville

All ER Reprints/[1916-17] All ER Rep /R v Baskerville – [1916-17] All ER Rep 38

 

R v Baskerville

 

[1916-17] All ER Rep 38

 

Also reported [1916] 2 KB 658; 86 LJKB 28; 115 LT 453; 80 JP 446; 60 Sol Jo 696; 25 Cox CC 524; 12 Cr App Rep 81

 

COURT OF CRIMINAL APPEAL

 VISCOUNT READING CJ, SCRUTTON, AVERY, ROWLATT AND ATKIN JJ

 29 MAY 1916

 31 JULY 1916

 Criminal Law – Evidence – Corroboration – Accomplice – Essentials of corroboration – Independent evidence implicating accused – Warning to jury – Review of verdict by Court of Criminal Appeal.

 

It has long been a rule of practice at common law for the judge at the trial of a person far a criminal offence to warn the jury of the danger of convicting the prisoner on the uncorroborated evidence of an accomplice or accomplices, and, in his discretion, to advise them not to convict on such evidence. In the absence of such a warning the Court of Criminal Appeal will quash the conviction, but will not do so if, after a proper caution by the judge, the jury nevertheless convict the prisoner, unless it thinks that the verdict is “unreasonable” or “cannot be supported having regard to the evidence” within s 4(1) of the Criminal Appeal Act, 1907. In considering whether or not the conviction should stand the Court of Criminal Appeal will review all the facts of the case, and will bear in mind that the jury had the opportunity of hearing and seeing the witnesses when giving their testimony.

 

The corroboration required must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, ie, which confirms in some material particular not only the evidence that the crime has been committed,

[1916-17] All ER Rep 38 at  39

 

but also that the prisoner committed it. The corroboration need not be direct evidence that he committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with it. Nor is it necessary that the accomplice should be confirmed in every detail of his evidence; if it were, his evidence would be merely confirmatory of the independent testimony and would not be essential to the case. The evidence given by one accomplice cannot be corroboration of the evidence of another accomplice, and where an accomplice gives evidence against two prisoners who are tried together corroboration of his evidence against one prisoner is not corroboration of his evidence against the other.

 

Notes

 

Considered: R v Evans (1924) 88 JP 196: R v Beebe (1925) 133 LT 736.” Considered: Statham v Statham, [1928] All ER Rep 219. Applied: R v Charavanmuttu (1930) 22 Cr App Rep 1. Considered: R v Davies (1930) 22 Cr App Rep 33; R v Lewis, [1937] 4 All ER 360; Nkambule v R, [1950] AC 379; Davies v DPP, [1954] 1 All LR 507. Referred to: R v Wyman (1918) 13 Cr App Rep 163; R v Feigenbaum, [1918-19] All ER Rep 489; R v Smith (1919) 14 Cr App Rep 74; R v Wakeley (1919) 84 JP 31; R v Warren (1919) 14 Cr App Rep 4; R v Schiff (1920) 15 Cr App Rep 63; R v Howard (1921) 15 Cr App Rep 177; Thomas v Jones, [1920] All ER Rep 462; R v Crocker, [1922] All ER Rep 775; R v Rudge (1923) 17 Cr App Rep 113; R v Ross (1924) 18 Cr App Rep 141; R v Harris, [1927] All ER Rep 473; R v Manser (1934) 25 Cr App Rep 18; Mahadeo v R, [1936] 2 All ER 813; R v Hervey, R v Goodwin (1939) 27 Cr App Rep 146; R v Barnes, R v Richards, [1940] 2 All ER 229; R v Day, [1940] 1 All ER 402; R v Hartley, [1941] 1 KB 5; R v Cleal, [1942] 1 All ER 203; R v Moore (1942) 28 Cr App Rep 111; R v Dent, [1943] 2 All ER 596; Fairman v Fairman, [1949] 1 All ER 938; Bereng Griffith Lerotholi v R, [1950] AC 11.

 

As to corroboration in criminal cases see 10 HALSBURY’S LAWS (3rd Edn) 458-462, and for cases see 14 DIGEST (Repl) 533 et seq.

 

Cases referred to:

(1) R v Atwood and Robbins (1788) 1 Leach, 464; 14 Digest (Repl) 534, 5132.

(2) R v Stubbs (1855) Dears CC 555; 25 LJMC 16; 26 LTOS 109; 19 JP 760; 1 Jur NS 1115; 4 WR 85; 7 Cox CC 48, CCR; 14 Digest (Repl) 535, 5191.

(3) R v Meunier, [1894] 2 QB 415; 63 LJMC 198; 71 LT 403; 42 WR 637; 18 Cox CC 15; 10 R 400, DC; 14 Digest (Repl) 535, 5193.

(4) R v Tate, [1908] 2 KB 680; 77 LJKB 1043; 99 LT 620; 72 JP 391; 52 Sol Jo 699; 21 Cox CC 693; 1 Cr App Rep 39, CCA; 14 Digest (Repl) 539, 5240.

(5) R v Mullins (1848) 12 JP 776; 3 Cox CC 526; 14 Digest (Repl) 410, 3996.

(6) R v Noakes (1832) 5 C & P 326; 14 Digest (Repl) 536, 5199.

(7) R v Birkett and Brady (1813) Russ & Ry 251, CCR; 14 Digest (Repl) 538, 5218.

(8) R v Jones (1809) 2 Camp 131; 31 State Tr 251; 14 Digest (Repl) 535, 5184.

(9) R v Hastings and Graves (1835) 7 C & P 152; 3 Nev & MMC 396; 14 Digest (Repl) 535, 5186.

(10) R v Avery (1845) 4 LTOS 493; 1 Cox CC 206; 14 Digest (Repl) 535, 5188.

(11) R v Wilkes (1836) 7 C & P 272; 14 Digest (Repl) 538, 5224.

(12) R v Farler (1837) 8 C & P 106; 14 Digest (Repl) 538, 5225.

(13) R v Dyke (1838) 8 C & P 261; 14 Digest (Repl) 538, 5226.

[1916-17] All ER Rep 38 at  40

(14) R v Birkett (1839) 8 C & P 732; 14 Digest (Repl) 538, 5228.

(15) R v Everest (1909) 73 JP 269; 2 Cr App Rep 116, 130, CCA; 14 Digest (Repl) 538, 5230.

(16) R v Wilson, Lewis and Havard (1911) 6 Cr App Rep 125, CCA; 14 Digest (Repl) 539, 5234.

(17) R v Blatherwick (1911) 6 Cr App Rep 281, CCA; 14 Digest (Repl) 533, 5179.

(18) Bradshaw v Waterlow & Sons, Ltd, [1915] 3 KB 527; 85 LJKB 318; 113 LT 1101; 31 TLR 556, CA; 14 Digest (Repl) 536, 5213.

(19) R v Brown (1911) 6 Cr App Rep 147, CCA; 14 Digest (Repl) 535, 5194.

(20) R v Crane (1912) 76 JP 261; 7 Cr App Rep 113, CCA ; 15 Digest (Repl) 1146, 11,535.

(21) R v Cohen (1914) 111 LT 77; 24 Cox CC 216; 10 Cr App Rep 91, CCA ; 14 Digest (Repl) 516, 4999.

(22) R v Willis, [1916] 1 KB 933; 85 LJKB 1129; 114 LT 1047; 80 JP 279; 32 TLR 452; 60 Sol Jo 514; 25 Cox CC 397; 12 Cr App Rep 44, CCA; 14 Digest (Repl) 540, 5246.

(23) R v Cooper (1914) 10 Cr App Rep 195, CCA; 14 Digest (Repl) 525, 5103.

(24) R v Jenkins (1845) 1 Cox CC 177; 14 Digest (Repl) 542, 5255.

Also referred to in argument:

R v Watson (1913) 109 LT 335; 29 TLR 450; 23 Cox CC 543; 8 Cr App Rep 249, CCA; 14 Digest (Repl) 511, 4942.

R v Andrews and Payne (1845) 5 LTOS 23; 1 Cox CC 183; 14 Digest (Repl) 535, 5190.

R v Warren (1909) 73 JP 359; 25 TLR 633; 2 Cr App Rep 194, CCA; 14 Digest (Repl) 539, 5231.

R v Kams (1910) 4 Cr App Rep 8, CCA; 14 Digest (Repl) 533, 5177.

R v Mason (1910) 5 Cr App Rep 171, CCA; 14 Digest (Repl) 543, 5266.

 

Appeal against conviction.

The appellant was convicted at the Central Criminal Court before the Recorder of London of gross indecency with male persons, contrary to s 11 of the Criminal Law Amendment Act, 1885 (now s 13 of the Sexual Offences Act, 1956: 36 HALSBURY’S STATUTES (2nd Edn) 223). The ground of the appeal was that he had been convicted on the evidence of accomplices which had not been corroborated.

 

Marshall-Hall, KC, and BW Ginsburg for the appellant.

 

Bodkin and ECP Boyd for the Crown.

 

31 July 1916. The judgment of the court was read by

 

VISCOUNT READING CJ:

The appellant was convicted of having committed offences under s 11 of the Criminal Law Amendment Act, 1885. He appeals to this court on the ground that there was no such corroborative evidence as is required by law of the testimony of the three boys who were called for the prosecution at the trial and were accomplices in the crime. There is no statutory provision requiring corroboration applicable to these offences. At the close of the arguments we decided that there was abundant corroboration. In addition to the testimony of the accomplices, the following facts were given in evidence. A letter was proved to have been sent to one of the boys by the appellant in his handwriting, signed by him with his initial B, without any address on the letter, inclosing a note for 10s to “Dear Harry,” one of the boys, for himself and “Charlie,” another of the boys, and making an appointment for them to meet the appellant “as arranged,” without naming the place, and at a time stated. The prisoner had admitted to the police that the three boys had been at his flat, that he knew one as a pageboy at the Trocadero Restaurant, and that this boy had been to see him

[1916-17] All ER Rep 38 at  41

 

on several occasions with another boy, and the appellant suggested to the police that he belonged to a boys’ club, and was entitled to invite any of the members to his place. The appellant was not a member of a boys’ club. The appellant gave evidence at the trial and admitted that he had given money to two of the boys on various occasions, and that, on hearing a peculiar whistle outside his flat, he had gone downstairs to let the boys in. We entertained no doubt that this evidence afforded ample corroboration of the boys’ testimony, even if we assumed that the corroboration required was corroboration “in some material particular implicating the accused.” We were of opinion that in any event the direction given to the jury by the learned recorder regarding this matter gave no cause of complaint to the appellant. The warning by the recorder to the jury was sufficient, if indeed not more than sufficient. We, therefore, announced that the appeal would be dismissed.

 

Having regard, however, to the arguments addressed to the court and to the difficulty of reconciling all the opinions expressed in the cases cited, and to the general importance of reviewing and re-stating the law applicable to corroboration of the evidence of accomplices, we took time to consider our judgment. There is no doubt that the uncorroborated evidence of an accomplice is admissible in law see R v Atwood and Robbins (1). 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: see R v Stubbs (2) and Re Meunier (3). This rule of practice has become virtually equivalent to a rule of law, and, since the Criminal Appeal Act, 1907, came into operation this court has held that, in the absence of such a warning by the judge, the conviction must be quashed: see R v Tate (4). If after the proper caution by the judge the jury nevertheless convict the prisoner, this court will not quash the conviction merely upon the ground that the testimony of the accomplice was uncorroborated. It can but rarely happen that the jury would convict in such circumstances. In considering whether or not the conviction should stand, this court will review all the facts of the case, and will bear in mind that the jury had the opportunity of hearing and seeing the witnesses when giving their testimony. But this court, in the exercise of its powers, will quash a conviction, even when the judge has given to the jury the warning or advice above mentioned, if this court, after considering all the circumstances of the case, thinks the verdict “unreasonable” or that it “cannot be supported having regard to the evidence”: Criminal Appeal Act, 1907, s 4(1). This jurisdiction gives larger powers to interfere with verdicts than had heretofore existed in criminal cases.

 

In addition to the rule of practice above mentioned, there are, with regard to certain offences, statutory provisions

 

“that no person shall be convicted of an offence under this section upon the evidence of one witness only, unless such witness be corroborated in some material particular by evidence implicating the accused.”

 

For example, the Criminal Law Amendment Act, 1885, s 2, s 3 [see now s 2, s 3, s 22, s 23 of Sexual Offences Act, 1956]. In these cases the law is that the judge, in the absence of such corroborative evidence, must stop the case at the close of the prosecution and direct the jury to acquit the accused. Where no such statutory provision is applicable to the offence charged, and the evidence for the prosecution consists of the uncorroborated testimony of an accomplice or accomplices, the law is that the judge should leave the case to the jury after giving them the caution already mentioned.

 

As the rule of practice at common law was founded originally upon the exercise of the discretion of the judge at the trial, and, moreover, as it is anomalous in its

[1916-17] All ER Rep 38 at  42

 

nature, inasmuch as it requires confirmation of the testimony of a competent witness, it is not surprising that this rule should have led to differences of opinion as to the nature and extent of the corroboration required, although there are propositions of law applicable to corroboration which are beyond controversy. For example,

“Confirmation does not mean that there should be independent evidence of that which the accomplice relates, or his testimony would be unnecessary”: MAULE, J, in R v Mulling (5) 3 Cox CC at p 531.

 

Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case; it would be merely confirmatory of other and independent testimony. Again, the corroboration must be by some evidence other than that of an accomplice, and, therefore, the evidence given by one accomplice is not corroboration of the testimony of another accomplice: R v Noakes (6). The difference of opinion has arisen mainly in reference to the question whether the corroborative evidence must connect the accused with the crime. The rule of practice as to corroborative evidence has arisen in consequence of the danger of convicting a person upon the unconfirmed testimony of one who is admittedly a criminal. What is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it. If the only independent evidence relates to an incident in the commission of the crime which does not connect the accused with it, or if the only independent evidence relates to the identity of the accused without connecting him with the crime, is it corroborative evidence? There are some expressions in the books which imply that it may be, and in R v Birkett and Brady (7) the judges were of opinion that an accomplice did not require confirmation as to the person he charged, if he was confirmed as to the particulars of his story. The case is very imperfectly reported and the evidence is not stated. It was not argued by counsel, but was stated verbally to a meeting of the judges by the judge who tried the case. There are other cases where it has been held that a conviction on such evidence could not be quashed by the court, but the ratio decidendi is that as an accomplice is a competent witness and the jury thought him worthy of credit, the verdict was in accordance with law. R v Atwood and Robbins (1) and R v Jones (8) may be referred to. There are other cases where it has been held that on such evidence the case cannot be withdrawn from the jury: eg, R v Hastings and Graves (9) and R v Avery (10).

 

After examining these and other authorities to the present date, we have come to the conclusion that the better opinion of the law upon this point is that stated in R v Stubbs (2) by PARKE, B, namely, that the evidence of an accomplice must be confirmed not only as to the circumstances of the crime, but also as to the identity of the prisoner. The learned baron does not mean that there must be confirmation of all the circumstances of the crime; as we have already stated, that is unnecessary. It is sufficient if there is confirmation as to a material circumstance of the crime and of the identity of the accused in relation to the crime. PARKE, B, gave this opinion as a result of twenty-five years’ practice; it was accepted by the other judges and has been much relied upon in later cases. In R v Wilkes (11) ALDERSON, B, said (7 C & P at p 273):

“The confirmation which I always advise juries to require is the confirmation of the accomplice in some fact which goes to fix the guilt on the particular person charged. You may legally convict on the evidence of an accomplice, if you can safely rely on his testimony, but I advise juries never to act on the evidence of any accomplice unless he is confirmed as to the particular person who is charged with the offence.”

 

In R v Porter (12) LORD ABINGER, CB, said (8 C & P at pp 107, 108):

“It is a practice which deserves all the reverence of law, that judges have uniformly told juries that they ought not to pay any respect to the testimony

 

[1916-17] All ER Rep 38 at  43

of an accomplice, unless the accomplice is corroborated in some material circumstance. Now, in my opinion, that corroboration ought to consist in some circumstance that affects identity of the party accused. A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all …. It would not at all tend to show that the party accused participated in it.”

 

In R v Dyke (13) GURNEY, B, said:

“Although in some instances it has been so held, you will find that in the majority of recent cases it is laid down that the confirmation should be as to some matter which goes to connect the prisoner with the transaction.”

 

In R v Birkett (14) the prisoner was indicted for receiving stolen sheep. The evidence consisted of the statement of an accomplice, and, to confirm it, it was proved that a quantity of mutton corresponding in size with the sheep stolen was found in the house of the prisoner. PATTESON, J, said:

“If the confirmation had merely gone to the extent of confirming the accomplice as to matters connected with himself only, it would not have been sufficient … but here we have a good deal more; we have a quantity of mutton found in the house in which the prisoner resides, and that I think is such a confirmation of the evidence of the accomplice’s evidence as I must leave to the jury.”

 

These cases lead to the view expressed later by PARKE, B, in R v Stubbs (2) and show that in his time; although there had been doubt in the past, the law as formulated by him was accepted as the correct opinion, and continued to be the law to the time of the passing of the Criminal Appeal Act, 1907, and, in our judgment, to the present day.

 

We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him – that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offence for which corroboration is required by statute. The language of the statute “implicating the accused” compendiously incorporates the test applicable at common law in the rule of practice. The nature of the corroboration will necessarily vary according to the particular circumstances of the offence charged. It would be in a high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true; not merely that the crime has been committed, but that it was committed by the accused. The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime. A good instance of this indirect evidence is to be found in R v Birkett (14). Were the law otherwise, many crimes which are usually committed between accomplices in secret, such as incest, offences with females, or the present case, could never be brought to justice.

 

The decisions of this court upon the nature of the corroboration required call for some examination, and it is because they do not always appear to be to the same effect that this court was specially constituted in order that we might lay down rules for future guidance. In R v Everest (15) the court said (2 Cr App Rep at p 132):

“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 accomplice, unless that evidence is corroborated in some particular which goes to implicate the accused.”

 

[1916-17] All ER Rep 38 at  44

 

We think “Tell the jury to acquit” should read “Warn the jury of the danger of convicting.” There is no statement in the report of the exact warning given by the judge. In R v Wilson, Lewis and Havard (16) there was an abundant caution, and the court said (6 Cr App Rep at p 128):

“It must not be supposed that corroboration is required amounting to independent evidence implicating the accused.”

 

If this means that the judge should not warn the jury to require independent corroboration of some part of the story which implicates or involves the accused, it goes too far. In R v Blatherwick (17) the court said: “R v Everest (15) goes too far. R v Wilson (16) is the correct statement of the law.” We agree that R v Everest (15) goes too far in saying that the judge should direct the jury to acquit, but R v Everest (15) is the better statement of the law as regards the corroboration for which the jury should look. In Bradshaw v Waterlow & Sons, Ltd (18) ([1915] 3 KB at p 534) PICKFORD, LJ, in the Court of Appeal was of opinion that the recent cases of R v Wilson, Lewis and Havard (16) R v Brown (19) R v Blatherwick (17) and R v Crane (20),

“show that it is not necessary to have corroboration directly implicating the accused if the corroboration which exists supports the truth of the story as a whole.”

 

The learned lord justice was merely stating his view of these cases in regard to the case there before the court. He found, however, that in fact there was corroboration directly implicating the accused in the case then under appeal, and it was, therefore, unnecessary to consider further the cases cited. In R v Cohen (21) the court did not attempt to deal with the difference of opinion manifested by the decisions of R v Everest (15) and R v Wilson, Lewis and Havard (16) but, as explained in R v Willis (22) decided the case on the assumption that the view of the law more favourable to the appellant as laid down in R v Everest (15) was right. The court there said that it was the practice of this court to require corroboration before it could allow a conviction to stand. We did not intend to lay down such a rule of practice. It is too strongly expressed and is too general a statement. The correct view is that laid down earlier in the present judgment. The latest case is that of R v Willis (22). The court there stated ([1916] 1 KB at p 937):

“There are certain statutes which provide that certain classes of evidence shall be insufficient to support a conviction unless corroborated by some other material evidence implicating the accused; but corroboration where required by the common law is not subject to any such qualification.”

 

It follows from the law laid down in the present judgment that that is a correct view to the effect that the verdict of a jury properly warned would not be set aside merely because they had believed an accomplice without corroboration implicating the accused, but it must not be read as meaning that the corroboration need not be independent evidence implicating the accused. R v Cooper (23) was referred to during the course of the argument in the present case. That case turned upon special facts relating to the medical testimony. It did not alter the law. Now that we have stated the law to be applied in future cases, we trust that it will be unnecessary again to refer to the earlier decisions of this court.

 

The question was discussed on the hearing of this appeal whether the evidence of an accomplice against two prisoners, corroborated as to one prisoner’s participation in the crime, but not as to the other, can be regarded as corroboration with regard to both prisoners. We think the law is correctly stated by ALDERSON, B, in R v Jenkins (24). The learned baron there said:

“Where there is one witness of bad character giving evidence against both prisoners, a confirmation of his testimony with regard to one is no confirmation of his testimony as to the other. If, therefore, you find there is a corroboration

 

[1916-17] All ER Rep 38 at  45

applicable to one prisoner, take it as against him, but, unless it exists with regard to both, it seems to me it would be unjust to give it a general effect.”

 

 

R v Jones (8) may appear at first sight to be in the contrary direction, but upon closer examination we do not think that LORD ELLENBOROUGH intended to decide more than that when two prisoners are tried and convicted upon the evidence of an accomplice corroborated as to the one but not as to the other, the conviction of the other must nevertheless be regarded as a conviction which was good in law. LORD ELLENBOROUGH, was upholding the rule of law that a conviction founded upon the evidence of an accomplice only could not be treated as bad in law. His Lordship said (2 Camp at pp 132, 133):

“Judges in their discretion will advise a jury not to believe an accomplice unless he is confirmed, or only in as far as he is confirmed, but, if he is believed, his testimony is unquestionably sufficient to establish the facts to which he deposes. It is allowed that he is a competent witness, and the consequence is inevitable that if credit is given to his evidence it requires no confirmation from another witness.”

 

 

We see no reason in principle why a different rule as to corroboration should apply to a prisoner tried with another against whom there is corroborative evidence of the accomplice’s story from that applicable if the first prisoner had been tried alone. In that case the uncorroborated evidence of the accomplice would be admissible against him, but it would be the duty of the judge to give the proper caution to the jury, and it would be equally incumbent upon the judge to give the warning to the jury when the prisoner is tried with another against whom there was corroboration of the story told by the accomplice. If the judge failed to give the warning, the court would be bound to set aside the conviction. If the judge gave the warning, this court would then have to consider all the circumstances of the case as already indicated. The appeal stands dismissed.

 

Appeal dismissed.

 

Solicitors: F Freke Palmer; Director of Public Prosecutions.

 

Reported by RF BLAKISTON, ESQ, Barrister-at-Law.