(As revised by Judge)
LORD JUSTICE SCARMAN: On 16th August, 1976, at Stafford Crown Court, Arthur
Whitehouse pleaded guilty to two offences of incitement to commit incest, and was sentenced to two years' imprisonment concurrent on each count. He further admitted being in breach of suspended sentences of imprisonment imposed at Stafford Crown Court on 25th April, 1975 when for one offence of incitement to commit gross indecency, contrary to Section 1 of the Indecency With Children Act, 1960, and for three offences of incitement to commit incest he was sentenced to 15 months' imprisonment concurrent on each count, suspended for two years. These suspended sentences were brought into operation and ordered to run consecutive to the sentences passed upon him at Stafford on 16th August.
He applied for leave to appeal against sentence to the single Judge who granted him leave, and who observed for the attention of the full Court that he thought the sentence was markedly excessive. There was no sexual intercourse, nor any attempt to have sexual intercourse. The offences alleged were confined to words of importuning, which the girl rejected.
When the appeal against sentence came before this Court, it occurred to us that it was possible that he had been sentenced in August, 1976 for offences unknown to the law, and a little further reflection indicated that, should that be right, he might well have been sentenced for three offences unknown to the law when he pleaded guilty to four offences at Stafford in April, 1975. In order that the matter might be properly and fully considered, we gave Mr. Stretton, who was appearing for the Appellant on the appeal against sentence, leave to apply out of time for leave to appeal against conviction, not only in 1976 but in 1975, of the offences of incitement to commit incest. We now therefore have before us these applications for leave to appeal against conviction, and the Crown has been represented upon the applications by Mr. Drake, Q. C. and Mr. Elsom, and we have heard submissions not only by the Applicant but also by the Crown.
We have decided to give leave to appeal against the 1976 convictions, and against those convictions in 1975 which related to the offences of incitement to commit incest.
I pause at this stage to make a formal invitation to Counsel. Mr. Stretton, do you wish to add anything further on the substantive appeal to the argument you have addressed on the applications?
MR. STRETTON: No, my Lord.
LORD JUSTICE SCARMAN: Mr. Elsom, does the Crown?
MR. ELSOM: No, my Lord.
LORD JUSTICE SCARMAN: I am very much obliged. We now therefore proceed to consider upon its merits the appeal against the convictions to which I have referred. The indictment which the Appellant faced in 1976 was an indictment charging him with incitement to commit incest, and the particulars of the offence charged were as follows: - that Arthur Whitehouse, on a date unknown between 1st December, 1975 and 10th February, 1976, unlawfully incited Kathleen Ann Whitehouse, a girl then aged 15, who was to his and her knowledge his daughter, to have sexual intercourse with him. To that count he pleaded guilty, as also to a second count charging incitement to commit incest, but on a different occasion, and he pleaded guilty to that as well.
When the Court saw those two counts framed in the way I have just described, we queried whether it was an offence known to law and we doubted whether it was because a girl aged 15 is incapable of committing the crime of incest. Later in this judgment it will be necessary to look at the terms of Section 11 of the Sexual Offences Act, 1956, but that shortly is the effect of the section so far as material to the issue in this case.
Nevertheless, in the face of his plea of guilty, we have to ask ourselves whether this Court has jurisdiction to entertain an appeal against conviction, and one has to have regard to the decision of the House of Lords in the case of Shannon which is reported in 1975 Appeal Cases at page 717. I need only read the relevant part of the headnote of that well known case. It is the second holding which appears at the top of page 718: The House of Lords held "that in the circumstances the respondent's conviction could only be quashed on appeal if one of the conditions prescribed by Section 2(l) of the Criminal Appeal Act, 1968 were satisfied: accordingly" the headnote continues "the respondent having pleaded guilty there was only power to quash the conviction if either there had been a wrong decision on a question of law or a material irregularity in the course of the trial. " We therefore may allow this appeal only if it can be properly said that there was a wrong decision of law or a material irregularity in the course of the trial. If it be correct that there is no offence known to the law as charged, it would be a wrong decision of law for the Judge to accept a plea of guilty; and a fortiori it would be wrong for the Judge to allow the matter to proceed to judgment. The point has been succinctly put by Lord Justice Salmon in R. v. Rollafson, reported in 1969 1 WLR page 815, and I quote one sentence from his judgment at page 816. The learned Lord Justice there said "The fact that he pleaded guilty is no bar to this appeal providing that it would have been impossible for him to have been lawfully convicted of this offence. " We have come to the conclusion that we have jurisdiction and we note that Counsel for the Grown in the course of a very helpful submission did not think fit to contend otherwise. The way in which jurisdiction arises can be put in terms of the Criminal Appeal Act, 1968 as follows. A person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction: Section 1(1) of the Act. When a man pleads guilty, there is a conviction; it is not a conviction after trial, it is a conviction upon confession; but, as long as that conviction is upon the record, this Court has jurisdiction, subject to the provisions of the Act, to entertain an appeal against it. The effect of Shannon is that, when there is an appeal against a conviction founded upon a confession, the duty of this Court to allow the appeal can only arise if one or other of the requirements of Section 2 are met. Amongst the requirements of that section are the two to which I have already briefly referred, a wrong decision of any question of law or a material irregularity in the course of the trial.
We have reached the conclusion that if the Appellant's submission is correct there was, on the grounds I have already mentioned, a wrong decision of law. Therefore in our judgment we have jurisdiction to entertain this appeal and we have a situation in which it is being submitted on behalf of the Appellant that there was a wrong decision of law by the Judge at the court of trial.
We turn now to consider whether the indictment disclosed an offence known to the law. The count standing by itself does disclose such an offence because the count merely alleges incitement to commit incest. But when one goes on to the particulars one sees that the accused man is charged with inciting his daughter, a girl aged 15, to commit incest with him. The Crown recognises that there are difficulties in the drafting of the indictment. The Grown recognises that under Section 11 of the Sexual Offences Act, 1956 a girl aged 15 cannot commit incest. The relevant subsection is (1) and I read it: "It is an offence for a woman of the age of 16 or over to permit a man whom she knows to be her father to have sexual intercourse with her by her consent." It is of course accepted by the Crown that at common law the crime of incitement consists of inciting another person to commit a crime. When one looks at this indictment in the light of the particulars of the offence pleaded, one sees that it is charging the accused man with inciting a girl to commit a crime which in fact by statute she is incapable of committing. If therefore the girl was incapable of committing the crime alleged, how can the accused be guilty of the common law crime of incitement? The Crown accepts the logic of that position and does not seek in this Court to rely on Section 11 of the Act of 1956 or to suggest that this man could be guilty of inciting his daughter to commit incest, to use the old phrase, as a principal in the first degree. But the Crown says that it is open to them upon this indictment to submit that it covers the offence of inciting the girl to aid and abet the man to commit the crime of incest upon her. Section 10 of the 1956 Act makes it an offence for a man to have sexual intercourse with a woman whom he knows to be his daughter, and the Crown says that upon this indictment it is possible to say that the accused has committed an offence known to the law, the offence being that of inciting his daughter under the age of 16 to aid and abet him to have sexual intercourse with her.
All this is clearly very strange and we will come to the problem of the substantive law a little later. At this stage, we have to ask ourselves whether the indictment framed in the terms to which I have referred can conceivably encompass the offence which the Crown now says is known to the law, that is to say, the offence of inciting this girl to aid and abet this man to have unlawful sexual intercourse with her. The Crown, accepting that the indictment is most ineptly drafted, nevertheless submits that under the broad principles governing the drafting and amendment of indictments all is cured by the existence of a plea of guilty. It will be obvious from the somewhat tortuous language in which it has been necessary to explain what the offence is that is said to be known to the law that it would be a very odd looking indictment indeed, and would certainly bear not even a faint resemblance to the particulars as pleaded.
Mr. Stretton, for the Appellant, has understandably submitted that, however flexible be the rules allowing amendment, the language of this indictment is too far away from what the Grown now says is the offence charged to be able to encompass it. We think there is much to be said for that submission, but we are prepared to assume, for the purposes of this appeal, that the indictment can be cured and accordingly we now read the indictment as an indictment charging this man with the offence of inciting a girl of 15 to aid and abet him to commit incest with her.
Is there such an offence known to the law? The difficulty arises from two features of the law to which I have already referred. First, at common law the crime of incitement consists of inciting another person to commit a crime. This was laid down in the case of Higgins many years ago and is well described in the very beginning of Chapter 10 of Smith and Hogan's Criminal Law at page 172. The learned authors cite a passage from a case (not an English case) which includes this sentence: "An inciter is one who reaches and seeks to influence the mind of another to the commission of a crime". The second difficult feature of the law is Section 11 of the Act of 1956 to which I have already referred. A woman under the age of 16 cannot commit the crime of incest. But, says the Crown, a man can, and so they go on to make their submission that a girl of 15 can aid and abet him to do so.
There is no doubt of the general principle, namely, that a person, provided always he or she is of the age of criminal responsibility, can be guilty of aiding or abetting a crime even though it be a crime which he or she cannot commit as a principal in the first degree. There are two famous illustrations in the books of this principle. A woman can aid and abet a rape so as herself to be guilty of rape, and a boy at an age where he is presumed impotent can nevertheless aid and abet a rape. The cases, which are very well known, are first in time R. v. Eldershaw. reported in 3 Carrington & Payne's Reports at page 396. In that case Mr. Baron Vaughan, in the course of a six line judgment, the brevity of which I wish I could emulate, says "This boy being under 14 he cannot by law be found guilty of a rape except as a principal in the second degree". So much for the boy.
The position in regard to a woman is stated by Lord Justice Bowen in one line and a half in Cox's Criminal Law Cases, Volume 17, at page 609, where two prisoners, a Mr. and Mrs. Ram, were indicted jointly for rape upon Annie Edkins of the age of 13. It was submitted that the woman could not be indicted for rape. Lord Justice Bowen declined to quash the indictment for rape as against the female prisoner.
Those cases clearly establish and have been regarded for a very long time as establishing the general principle to which I have referred.
But what if the person alleged to be aiding and abetting the crime is herself the victim of the crime? This poses the short question with which this appeal is concerned. Before we consider it we would comment that, if indeed it be the law that this girl aged 15 can be guilty of incest as the aider and abetter of a man who is seeking to have intercourse with her, then one has the strange situation that, although she cannot be guilty of the crime of incest under the section which formulates the conditions under which a woman may be found guilty of that crime, yet through this doctrine of aiding and abetting she can be guilty of the offence when it is committed by a man. That is an odd conclusion, but not necessarily to be rejected because of its oddity.
The important matters in our judgment are these. First this girl, aged 15, belongs to a class which is protected, but not punished, by sections 10 and 11 of the Sexual Offences Act, 1956, and secondly the girl is alleged to be the victim of this notional crime. The whole question has an air of artificiality because nobody is suggesting either that the father has committed incest with her or that she has aided and abetted him to commit incest upon her. What is suggested is that the father has committed the crime of incitement because by his words and conduct he has incited her to do that which, of course, she never has done.
The question in our judgment is determined by authority. It is, strictly speaking, persuasive authority only because it deals with a different Act of Parliament, but it is a decision by a strong court which has declared a principle which is as applicable to the statutory provision with which we are concerned as to that with which that case was concerned. The case is R. v. Tyrrell reported in (1894) 1 QB 710. It was a decision of the Court of Crown Cases reserved and it was a five Judge Court, consisting of Lord Coleridge, Chief Justice, Mr. Justice Mathew, Mr. Justice Grantham, Mr. Justice Lawrance and Mr. Justice Collins. The headnote reads as follows: "It is not a criminal offence for a girl between the ages of 13 and 16 to aid and abet a male person in committing or to incite him to commit the misdemeanour of having unlawful carnal knowledge of her, contrary to Section 5 of the Criminal Law Amendment Act, 1885". It is necessary to look at the facts. I take them from page 710 of the report: the defendant was tried and convicted on an indictment charging her with having unlawfully aided and abetted, counselled and procured the commission by one Thomas Ford of the misdemeanour of having unlawful carnal knowledge of her while she was between the ages of 13 and 16, and it was proved at the trial that the girl did aid and abet, solicit or incite the man to commit the misdemeanour made punishable by Section 5 of the 1885 Act. The Chief Justice in giving judgment said - and I quote from page 712 - "The Act was passed for the purpose of protecting women and girls against themselves. At the time it was passed there was a discussion as to what point should be fixed as the age of consent. That discussion ended in a compromise and the age of consent was fixed at 16. With the object of protecting women and girls against themselves, the Act of Parliament: has made illicit connection with a girl under that age unlawful; if a man wishes to have such illicit connection he must wait until the girl is 16 otherwise he breaks the law; but it is impossible to say that the Act which is absolutely silent about aiding or abetting or soliciting or inciting can have intended that the girls for whose protection it was passed should be punishable under it for the offences committed upon themselves". The other four Judges agreed with the Chief Justice.
In our judgment it is impossible, as a matter of principle, to distinguish Tyrrell's case from the present case. Clearly the relevant provisions of the Sexual Offences Act, 1956, are intended to protect women and girls. Most certainly Section 11 is intended to protect girls under the age of 16 from criminal liability, and the Act as a whole exists, insofar as it deals with women and girls exposed to sexual threat, to protect them. The very fact that girls under the age of 16 are protected from criminal liability for what would otherwise be incest demonstrates that this girl who is said to have been the subject of incitement was being incited to do something which, if she did it, could not be a crime by her.
One can only avoid that conclusion if one can pray in aid the doctrine of aiding and abetting and apply it to the crime committed by a man under Section 10. But Tyrrell makes it clear that to do that would be to impose criminal liability upon persons whom Parliament has intended should be protected, not punished.
We have therefore come to the conclusion, with regret, that the indictment does not disclose an offence known to the law because it cannot be a crime on the part of this girl aged 15 to have sexual intercourse with her father, though it is of course a crime, and a very serious crime, on the part of the father. There is here incitement to a course of conduct, but that course of conduct cannot be treated as a crime by the girl. Plainly a gap or lacuna in the protection of girls under the age of 16 is exposed by this decision. It is regrettable indeed that a man who importunes his daughter under the age of 16 to have sexual intercourse with him but does not go beyond incitement cannot be found guilty of a crime. This difficulty may have been apparent to the legislature because there is statutory protection for young people under the age of 14 - I refer to Section 1 of the Indecency With Children Act, 1960. By that section any person - and I leave out the immaterial words - who incites a child under the age of 14 to an act of gross indecency shall be liable on conviction on indictment to imprisonment for a term not exceeding two years. Had his daughter been under the age of 14, the accused would have been guilty of this statutory incitement, and on a plea of guilty that would have been the end of the matter. It is to be noted that in the earlier 1975 indictment there was included a count under the Section to which he did in fact plead guilty. But the gap remains between the age of 14 and the age of 16. It may be that the legislature will consider it desirable to stop that gap. But in our judgment, applying the principles of the common law relating to the crime of incitement, and taking note of the decision of Tyrrell in relation to legislation similar to the Sexual Offences Act, 1956, we have to declare the existence of the lacuna to which I have referred. There was incitement; but it was not incitement to crime. The girl's notional crime - because she never did commit it - is unknown to the law and therefore there can be no offence by him, the inciter.
For those reasons, as I say with regret, we find it necessary to allow these appeals against conviction. The effect is, so far as the 1975 convictions are concerned, that the convictions upon the counts which charged offences of incitement to commit incest are quashed. The conviction charging the offence of incitement to commit gross indecency stands. When one comes to the 1976 convictions, there were two convictions on two counts charging offences of incitement to commit incest and both those convictions have to be quashed.
There remains therefore only one matter for this Court to consider, and that is what is to be done in regard to sentence for the offence of incitement to commit gross indecency imposed in 1975. As to that matter we have not yet heard argument. This judgment is concerned solely with the appeals against conviction. (Counsel addressed the Court on sentence. )
LORD JUSTICE SCARMAN: Mr. Whitehouse, before you leave the Court, we would strongly recommend that you get in touch with the probation officer. I think it would be helpful.
As I indicated at the end of ay judgment on the appeals against conviction, we think justice now requires that the sentence for the offence of incitement to commit gross indecency which was passed on 25th April, 1975 should be reviewed. There has in fact been no application up to a moment or two ago for leave to appeal against that sentence, but that in the unique circumstances of this case is by no means surprising. Justice however does now require that we should look at it.
The Appellant, when he pleaded guilty to the offence in 1975, was sentenced to 15 months' imprisonment, suspended for a period of two years. On our judgment as to the validity of his subsequent convictions, he has done nothing since that date which would entitle or empower the Court to activate the sentence. Yet upon convictions which we have found to be bad in law he has had a very considerable period in prison. We think that the justice of the matter would be met by taking a very simple course. We will not interfere with the period of 15 months' imprisonment imposed, but we will amend the period of suspension from two years to one year. That means that he is now free of the threat of a further activation of that sentence of imprisonment. Because of the nature of the case, we take the view that this man should be encouraged to keep in touch with his local probation officer. I have not dealt in the judgment with the facts of the case, but plainly they reveal a very sad situation and it is to be observed that the single Judge, when considering the merits of sentence for the convictions which have now been quashed, made the remark for the attention of this Court that he thought the sentences were markedly excessive. This man is entitled, since initially he appealed against sentence, to have that opinion of the single Judge made public.
Mr. Barr, will you take steps about this case?
MR. BARR: I will indeed, my Lord.
LORD JUSTICE SCARMAN: Ho doubt this case will be reported in the Press and it is perfectly proper that it should be, but we would ask the Press to suppress all
