REX V. AND 1905. civil actions as to conspiracies in criminal cases. In Reg. v. Aspinall (36 L. T. Rep., at p. 301; 2 Q. B. Div., at p. 59) Brett, BRAILSFORD J. mentions several instances of agreements which come within the rule, and he refers to Reg. v. Warburton (ubi sup.), and to MCCULLOCH Rex v. De Berenger (3 M. & S. 67), in which it was held to be a criminal conspiracy to agree to endeavour to raise raise the price of the public funds on a particular day by false rumours, Conspiracyand on the ground of public mischief. Grose, J. in Rex v. Act tending to public Mawbey (6 T. R. 619, at p. 636) states the principle in similar mischiefterms. In Reg. v. Parnell (14 Cox C. C. 505, 508) the whole law Combination on the point is gone into by the Irish Court. Another class of cases is where the object aimed at is immoral. A conspiracy may be to do a lawful act by unlawful means (Reg. v. Bunn, 12 Cox C. C. 316). There is here not only the public mischief, but it is founded upon misrepresentation and fraud-namely, a fraud upon a great public department of State, and the real element in most of these cases is fraud or cheating. There is no difference in principle between Rex v. Vaughan (ubi sup.)a case of attempting to bribe a privy councillor and the present case. There is the cheating of the officer and the fraud of the public brought about by that cheating; and the broad principle is that the act was a matter of public importance and tended to public mischief. Sir Robert Reid, K.C. in reply.-There is no crime that is not aimed at the public mischief, and from that it is contended that everything which tends to public mischief is a crime, which is false reasoning. So far as the criminal law is concerned it is not sufficient that the act might produce mischief to the public. If this is a crime either principle or precedent must be given for it. Neither principle nor precedent can be given, and without principle or precedent there can be no conviction. Neither necessarily nor probably would public mischief follow from the defendants' act. [It was arranged that the motion for a new trial should be taken separately as an ex parte motion.] Aug. 1.-Sir Robert Reid, K.C. (J. A. Simon with him) moved for a rule nisi for a new trial upon the ground that there was no evidence of an intention to cause public mischief or of the acts in question having tended to cause public mischief, and whether it was the intention to cause public mischief or the tendency to cause that mischief that was necessary, was a question for the jury and not for the judge. The intention in law which is necessary to constitute every criminal act is a question of fact for the jury, whether that intention is to be inferred from the necessary consequences of the defendants' acts, or is to be inferred from the evidence. It is for the jury and not the judge, to draw that inference; and if it be said that whatever tends to the public mischief is a crime, then the whole case as to that has to go to the jury. In order to show a tendency to public mischief it is not enough to show that the passport got into the hands of a criminal person. to procure passport for use by other than grantee -Misdemeanour. REX บ. AND It was necessary to show that the tendency of the act was one which necessarily led to public mischief, and if an act leading BRAILSFORD to public mischief was an offence, then that principle must, as MCCULLOCH. in the case of libel, be subject to this safeguard that it is for the jury to determine whether that particular act, or class of act, came within the rule, and that was not for the ruling of the Conspiracy judge, as in this case. In the first place, there was no evidence Act tending of injurious tendency; and, in the second place, the whole to public question as to any tendency to be inferred ought to have gone mischief— Combination to the jury. The Court refused to grant a rule. 1905. to procure Cur, adv. vult. Aug. 4.-The judgment of the Court (Lord Alverstone, C.J., than grantee Lawrance, and Ridley, JJ.) was read by passport for use by other -Misde meanour. Lord ALVERSTONE, C.J.-This was a motion in arrest of judgment upon an indictment against Henry Noel Brailsford and Arthur Henry Muir McCulloch, against whom a jury found a verdict of guilty on the first count of an indictment in respect of a conspiracy to obtain a passport from the Foreign Office in the name of McCulloch to be used by another person. It is not necessary to repeat at length the allegations in the indictment; its scheme may be summarised as follows: It sets out the practice with regard to passports and the conditions upon which they are issued; it alleges a conspiracy between the defendants and other persons not known to obtain by false and fraudulent pretences and misrepresentations a passport in the name of Arthur Henry Muir McCulloch; it alleges the sending in of the necessary documents by Brailsford and McCulloch in the name of McCulloch, and the issuing of the passport thereon. It then alleges the use of the passport by other persons not known, and concludes with the following averment: "And the said other persons whose names are unknown, in further conspiracy, combination, confederacy, and agreement, did send and cause and procure to be sent the said passport lastly hereinbefore set forth, having then thereon the visé and signature of the said Russian Consul General, out of the United Kingdom to a certain person or persons unknown, for use when in Russia by a certain person whose name is unknown, other than the said Arthur Henry Muir McCulloch, with the intent and purpose that the said passport should be so used in the dominions of the Czar of Russia by the said person whose name is unknown, as aforesaid to the evil example of all others in the like case offending, in contempt of our said lord the King and his laws, in fraud of the said regulations issued by and with the authority of the said Principal Secretary of State for Foreign Affairs, to the injury and prejudice and disturbance of the lawful, free, and customary intercourse existing between the liege subjects of our said lord the King and the subjects of the said Czar of Russia, to the public mischief of the said liege subjects and to the endangerment of the continuance of the peaceful relations between our said lord the King and the said Czar of Russia and their subjects respectively, and against REX v. BRAILSFORD AND 1905. Conspiracy -Act tending to public mischiefCombination to procure passport for than grantee use by other -Misdemeanour. the peace of our said lord the King, his Crown, and dignity." The indictment contained a second count alleging as an offence the obtaining of a passport by similar false pretences, but without any allegation of conspiracy. The jury, as already stated, found MCCULLOCH. both defendants guilty on the first count and said that they had not considered the second count, and I discharged them without their finding a verdict thereon. It was argued in arrest of judgment by Sir Robert Reid, on behalf of the defendants, that the count of the indictment which the defendants were found upon guilty was bad in law, as disclosing no indictable offence, and also on the ground that the act done-namely, the obtaining of a passport by a false representation-although an improper act, was not a criminal act or an indictable misdemeanour at common law, and that the conspiracy to obtain such passport was not an indictable misdemeanour. We are clearly of opinion that the count is good and that the conviction must stand; but in deference to the arguments of Sir Robert Reid, and as the point has never risen directly before, we think it right to state the reasons for our decision. It is not necessary for us to decide whether apart from conspiracy the obtaining of a passport by false pretences-. namely, by alleging that it was required for the use and protection of A. B., whereas it is in fact intended to be used by some third person, not known to or recommended by the Foreign Office-is of itself a misdemeanour; but as the question has some bearing on the validity of the conviction on the first count we desire to make a few observations thereon. It will be well to consider what a passport really is. It is a document issued in the name of the Sovereign, on the responsibility of a Minister of the Crown to a named individual to be presented to the Governments of foreign nations, and to be used for that individual's protection as a British subject in foreign countries, and it depends for its validity upon the fact that the Foreign Office, in an official document, vouches the respectability of the person named. Passports have been known and recognised as official documents for more than three centuries, and in the event of war breaking out become documents which may be necessary for the protection of the bearer, if the subject of a neutral State, as against the officials of the belligerents, and in time of peace in some countries, as in Russia, they are required to be carried by all travellers. It is not necessary to do more than to remember certain incidents in the nineteenth century to see what grave international questions might arise in the event of a person who holds a passport receiving illtreatment in a foreign country. It cannot, of course, be maintained that every fraud and cheat constitutes an offence against the criminal law; but the distinction between acts which are merely improper or immoral and those which tend to produce a public mischief has long been recognised; the cases cited by the learned Attorney-General, Rex v. Higgins (2 East, at pp. 20 and 21), Rex v. Wheatley (2 Burr., at p. 1127), Young v. The REX v. AND 1905. -Misde meanour. King (3 T. R., at p. 104) are authorities for this view. They are supported by the reasoning in the judgment in Rex v. De BRAILSFORD Berenger (3 M. & S., at p. 76), Rex v. Dixon (3 M. & S. 11), and MCCULLOCH. Treeve's case (2 East P. C. 821), and a reference to the original record of the decisions of the judges, which is in the possession of the Lord Chief Justice, shows that Treeve's case did not Conspiracy depend on the ground given at p. 822 of East. The whole Act tending chapter under the title of "Cheats" in that work is worthy of to public mischiefperusal. It is, however, unnecessary to consider this point Combination further, because we are clearly of opinion that the act done-viz., to procure the obtaining of a passport by false pretences-is an act of the passport for kind which would render a conspiracy to carry it into effect use by other than grantee unlawful, and we think that both defendants have been rightly convicted of criminal conspiracy. Whatever attempts may have been made from time to time to strain the law of conspiracy or bring within its purview combinations to perform acts to which no objection can be taken, when done by a single individual, no question of the kind arises in this case. For a great many years it has been the law of England that conspiracy consists" in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only it is not indictable. When two agree to carry it into effect the very plot is an act in itself and the act of each of the parties punishable, if for a criminal object, or for the use of criminal means" (Mulcahy v. The Queen, L. Rep. 3 H. L., at p. 317). This definition is expressly approved by the House of Lords in Quinn v. Leathem (85 L. T. Rep., at p. 297; (1901) A. C., at p. 529). It cannot be seriously disputed that the obtaining a passport from the Foreign Office, by the false statement that it was required for a person named therein and recommended to the Foreign Office, with the intent that it should be used by another and different person who has not been recommended, is a cheat and conspiracy to deceive the Foreign Office, and obtaining the document by means thereof is a criminal conspiracy. We are, therefore, clearly of opinion that the first count of the indictment upon which the defendants were found guilty is good, and the conviction stands. In addition to the objection taken on motion in arrest of judgment, a motion was made by Sir Robert Reid on Tuesday last for a new trial upon the ground that there was not sufficient evidence in support of the indictment, and that the jury had been misdirected, in that it had not been left to them to find that the act done might tend to public mischief. Without saying there cannot be acts upon which an innocent construction might be put or that in some cases it might not be for the jury to find as a fact whether the act was innocent or not, we are clearly of opinion that no such argument can possibly be urged in this case. In criminal as well as in civil cases persons are responsible for the natural consequences of their acts. It was not disputed that there was abundant evidence that the defendants did combine to obtain a passport in the name of REX v. BRAILSFORD AND 1905. to public to procure McCulloch with the intent that it should be used in Russia by some other individual, and that in fact it was so used with their knowledge and consent. We are of opinion that it is for the Court to direct the jury as to whether such an act may tend to MCCULLOCH. the public mischief, and that it is not in such a case an issue of fact upon which evidence can be given. Assuming the matter to relate to the issue of a public document by a public department Conspiracyof State, and it is obtained by a false representation for an Act tending improper purpose-that is, for use by a different person passing mischiefhimself off as the bonâ fide holder-we are of opinion that it is Combination injurious to the public and tends to bring about a public mischief. It is scarcely necessary to cite authority, but we would call attention to the reasoning of Lord Mansfield in Rex v. Vaughan (4 Burr., at p. 2499). A further point was raised as to the misreception of evidence. We are clearly of opinion that the statement made by McCulloch was admissible, there being no evidence that the statement was otherwise than free and voluntary and there being nothing to bring the case within the rule laid down in Reg. v. Thompson (69 L. T. Rep. 22; (1893) 2 Q. B. 12), on which ground the Lord Chief Justice had excluded a letter written by Brailsford to the other defendant. For these reasons the conviction must stand. Judgment for the Crown. The sentence upon the defendants was that each of them should be fined in the sum of 100l. and should be imprisoned until the fines were paid. Solicitor for the Crown, Treasury Solicitor. Solicitors for the defendants, Radford and Frankland. passport for use by other than grantee Misde meanour. |