COUNSEL: Edward Clarke Q.C. and John Hugill for the appellant.

Sir Jocelyn Simon Q.C., S.-G. and W. D. T. Hodgson Q.C. for the respondent.

 

SOLICITORS: Church, Adams, Tatham & Co.; Director of Public Prosecutions.

 

JUDGES: Lord Denning, Lord Goddard, Lord Morton Of Henryton, Lord Morris Of Borth-y-Gest and Lord Guest.

 

DATES: 1961 April 26, 27; May 1, 2, 3; June 23.

 

 

[*551] Their Lordships took time for consideration.

 

June 23. LORD DENNING. My Lords, this case raises the question whether there is today such an offence as misprision of felony. Mr. Edward Clarke says that there has never been such an offence known to our law; or if there has, he says, it has ceased to be an offence by becoming obsolete. The Solicitor-General says that there always has been such an offence and the present case is a good example of its continuing usefulness. The facts giving rise to the question were as follows: [*552]

 

About March 18, 1960, thieves got into the weapon armoury at a United States Air Force station in Norfolk. They stole 100 pistols, 4 submachine-guns and about 1,960 rounds of ammunition. They hired a taxi and took the stolen goods to Manchester. They took them into the house of a man named Kenny. A day or two later a man named Whittle brought a van to Kenny’s house and took the “stuff” to the house of a man named Black.

 

On March 23, 1960, Sykes comes into the story. We do not know how he came to know about the guns and ammunition but we know that he went up to an Irishman named Kerwin who was a waiter in a Manchester club and asked him: “Have you any contacts with the I.R.A.?” Kerwin said: “I don't want to talk about it in the club.” They talked about it later: and they went to a hotel where they met two men. One of them was Kenny (the man who first received the guns in Manchester) and the other was a man named Tucker (who has not appeared in the story before). Kenny said they had 100 revolvers, some submachine-guns and ammunition for sale. Kerwin led them to think that he had contacts with the I.R.A. and would have to go to London to see them. But instead of going to London, he went to the police and acted under their instructions.

 

On March 27, 1960, Kerwin (prompted thereto by the police) told Sykes that he had arranged to dispose of the guns but he needed a sample to convince the organisation that the guns were there. Kerwin that night asked Sykes what he expected to gain financially and he said: “Half of what Tucker gets for his share.”

 

On March 28, 1960, Kenny took a sample of one of the pistols and gave it to Kerwin (who gave it to the police). Later the police disguised themselves as would-be purchasers of the guns. They were taken to Black’s house and shown the goods. Whereupon the police officers disclosed their identity, and arrested Kenny, Whittle and Black. They took possession of the stolen property. Afterwards they arrested Tucker and Sykes.

 

In the early morning of March 29, 1960, at the police station, the superintendent said to Sykes: “I have reason to believe that you were the man who first got into touch with an Irishman and asked him to contact the I.R.A. so that they could buy the guns and that you have been actively helping Kenny and Tucker in arranging for the sale of these guns during the past week.” Sykes said: “Look, Inspector, that can't be possible. I don't know this man Kenny and I haven't seen Tucker for four months.”

 

All five men were taken before the magistrates. Kenny, [*553] Tucker, Whittle and Black were charged with receiving the goods, knowing them to have been stolen. Sykes was charged as being accessory after the fact. After the evidence was taken, counsel for Sykes urged strongly that he ought not to be committed for trial on the charge of being accessory: there was no evidence that he had taken any active steps to conceal the felony or had done any act for the purpose of assisting the others to escape conviction. He relied on Rex v. Jones.1 But the magistrates committed all five men for trial.

 

When counsel was instructed to draft the indictment, he was so impressed by the argument which had been urged before the magistrates that he did not put in a count charging Sykes with being an accessory after the fact but charged him with misprision of felony. The indictment against the five men was as follows: First count: Kenny, Tucker and Sykes were charged with receiving stolen goods, knowing them to have been stolen. Second count: Tucker and Sykes were charged with misprision of felony. Third count: Black and Whittle were charged with receiving. Fourth count: Kenny, Tucker and Sykes were charged with attempted sale of firearms contrary to the Firearms Act, 1937.

 

On May 9, 1960, when the case was called on, counsel for Sykes moved to quash counts 1 and 2 against Sykes on the ground that there was no evidence to warrant them. The judge (Sir Basil Nield) upheld this contention so far as regards count 1 for receiving – there was clearly no evidence of his having possession of the goods – but disallowed it on count 2. So the charge of misprision of felony remained.

 

On arraignment Black pleaded guilty to receiving. The rest pleaded not guilty and were put in charge of the jury. After the evidence for the prosecution had been called, Kenny, Tucker and Whittle withdrew their pleas of not guilty and pleaded guilty to certain of the charges against them, including, be it noted, a plea of guilty by Tucker to misprision of felony. So at that point all except Sykes had pleaded guilty, and the case went on against Sykes alone. He gave evidence and the judge summed up. The jury found him guilty of misprision of felony but not guilty of attempted sale of firearms.

 

On May 26, 1960, the judge sentenced Kenny to seven years for receiving (and two years concurrent for attempted sale of firearms), Tucker to five years for misprision of felony (and two years concurrent for attempted sale of firearms). Black and 

 

1 [1949] 1 K.B. 194; 64 T.L.R. 616; [1948] 2 All E.R. 964; 33 Cr.App.R. 33, C.C.A. [*554]

 

Whittle each to fifteen months for receiving and Sykes to five years for misprision of felony.

 

Kenny and Tucker applied for leave to appeal against their sentences but their applications were refused. Sykes applied for leave to appeal against conviction and sentence. On January 23, 1961, the Court of Criminal Appeal refused him leave to appeal against conviction but granted leave to appeal against sentence. On February 13, 1961, the Court of Criminal Appeal set aside the sentence on Sykes of five years and substituted such a period of imprisonment as would allow him to be discharged on the next day, February 14, 1961.

 

It transpired, however, that Sykes did not need leave to appeal against conviction because he had a right of appeal on a point of law. So the court treated his application as if it was a final appeal against conviction which had been dismissed; and they gave him leave to appeal to this House limited to the following points: (1) Whether there is such an offence as misprision of felony. (2) Whether active concealment is an essential ingredient of the offence.

 

The question whether there is such an offence as misprision of felony is of great importance and we were privileged to have the results of much research placed before us by counsel on both sides.

 

Most lawyers know, roughly speaking, what “misprision of felony” means. It means that a man knows that a felony has been committed and neglects to disclose it. But many laymen are perplexed by the word “misprision.” What does it mean? Whence its derivation? Lord Coke [Third Institute, p. 36] attempted to fit it in with present notions when he said that “Misprision cometh of the French word mé;spris which properly signifieth neglect or contempt.”: but the authors of the Oxford English Dictionary, who included Sir Frederick Pollock, in a very learned article say that the word “misprision” is derived from the old French word “mé;sprendre” which means to act wrongly: and in early times it meant simply a wrong action or omission. This is borne out by the old law books where it is used almost as synonymous with misdemeanour, that is to say, something less than felony which did not carry the death penalty. One of the earliest records of its use is in the Year Book in 1484 (2 Richard III, case 22, p. 9 et sequitur) where a man called Mundy had falsified a writ. It was a felony and, if charged as such, would carry the death penalty: but for mercy’s sake, and may be for convenience also, the judges said he could be indicted for a misprision. “It was allowed it was felony [*555] and so included misprision, etc.” As a result of this case it was held that every treason or felony included a misprision. The King used to take advantage of this rule in cases of treason, so that, if the man did not deserve the death penalty, he was indicted only with “misprision of treason.” Now concealment of treason was itself treason. If anyone knew that another was guilty or in any way incriminated in treason, he was bound at once to go to the King or to anyone in his immediate circle and tell him all that happened: see Bracton, Book III, fol. 118, 119. If he did not do so, he could be indicted either for treason which carried the death penalty, or misprision of treason which did not. But this alternative was taken away in 1555. By the statute of 1555 (1 Ph. & M. c. 10) it was enacted that “concealment or keeping secret of any high treason be deemed and taken only misprision of treason.” From this time forward the phrase “misprision of treason” was taken to denote only the concealment or keeping secret of treason. And by a natural sequence “misprision of felony” denoted only the concealment or keeping secret of felony.

 

So much for the meaning of the phrase. But now comes the question: Has it ever been an offence known to the law? My Lords, it has been an offence for the last 700 years or more, not always under the name “misprision of felony,” but still an offence. Ever since the days of hue and cry, it has been the duty of a man, who knows that a felony has been committed, to report it to the proper authority so that steps can be taken to apprehend the felon and bring him to justice. In the thirteenth century it was his duty “to raise hue and cry,” that is to say, he had to report it to the sheriff of the county or his officer or to the constable of the town: whereupon it was the duty of that officer to levy hue and cry, that is, to shout aloud calling on all able-bodied men over the age of 15 to pursue the offender and arrest him: and it was their duty to join in the pursuit. The duty on the officer to levy hue and cry and on the citizens to join in pursuit was reinforced by various statutes and particularly by the Statute of Westminster (1275) 3 Edw. 1, st. 1, c. 9. Under that statute if the officer failed to levy hue and cry when he should have done so, he was liable to imprisonment for a year and to a fine. If a citizen failed to join in pursuit, he was liable to a fine. This statute was re-enacted as recently as 1887 when in section 8 of the Sheriffs’ Act, 1887, it was laid down that “Every person in a county shall be ready and apparelled at the command of the sheriff and at the cry of the country to arrest a felon.” [*556]

 

Although these statutes dealt with the duty of the officers and of citizens to join in pursuit, there was no statute dealing with the duty of the man, who knew of the felony, to report it. This duty rested solely on the common law. There are several cases in the Rolls of the Justices in Eyre where a man was present where a felony was committed, or in the house at the time, or found the dead body of a man who was slain. If he did nothing – did not “raise the hue and cry or do anything” – he was guilty of an offence and liable to be fined. The case which is usually cited in this regard is a case in 1315 which was noted by Fitzherbert in his Abridgement, Title Pleas of the Crown, para. 395: but it can be found much more fully reported now in the Selden Society, volume 24, p. 152, where Ormesby J. said: “It is the law of the land that such as be present when such a felony as this is committed shall raise hue and cry, and give their aid towards arresting the felons. Wherefore you will make fine with the King.” The other case on the point is also noted by Fitzherbert in his Abridgement, Title Conspiracy, para. 5. It was a case in the year 1457 where a man, who had been present at a killing, reported it to a guardian of the peace. On this account he was charged with conspiracy. The judges rejected the charge: and Prisot, the Chief Justice of the Common Pleas, said: “He was bound by the law to do what he did.” Sir William Staunford summarised these cases in this way: “If anyone happens to be present when another is killed, or when a felony is committed, and did not come there in the company of the felons, nor was part of their confederacy, but nevertheless did not intervene or disturb the felons or raise hue and cry, he is not on that account to be held a principal or accessory, for it is not a felony in him but only an offence for which he can be fined like trespass”: see Staunford, Pleas of the Crown, para. 40B. In those early cases the accused man was present at the killing and so knew of it. But any other proof of knowledge would suffice. In 1550 there was a case where the man was not present but knew of the felony, and was held to be under duty to report it. This was the case: I. S. was robbed of his goods. After the robbery, he pursued the felon and retook his goods. But he let the felon go. All the judges at Serjeant’s Inn agreed that he was not to be held to be an accessory but he was guilty of “un concealment”: see Moore (K.B.), p. 8. It was said to be “le duty de chescun home sur son allegiance de discoverer felonies.”

 

This offence – concealing or failing to report a felony – does not seem to have acquired a name for itself until 1557 when Staunford [*557] gave it one. At the time he wrote, there had recently been enacted the statute of 1555 dealing with misprision of treason, which was the “concealing or keeping secret of any high treason.” Staunford seems to have seen here a parallel with the common law offence of concealment of felony. So he, by analogy with the statute, used the words “misprision of felony” to denote the concealment or keeping secret of felony. He gave a separate chapter to misprision and started off with these words: “Misprision: est properment quant ascun sciet ou conust, que un auter ad fait treason ou felony, et il ne voille luy discoverer al roy, ou son counsel, ou a ascun magistrat, eins conceala son offence, ceo est misprision” – which may be translated as follows: “Misprision: this is properly when anyone learns or knows that another has committed treason or felony, and he does not choose to denounce him to the King or to his Council, or to any magistrate, but conceals his offence; this is a misprision.”

 

My Lords, it was suggested that Staunford in this passage made a clerical mistake. “Ou” should be “et”: or, in the translation “or” should be “and.” I cannot subscribe to this for a moment. There is internal evidence from the book itself which shows it was no mistake. But apart from this, it was, as I have said, always an offence for a man to conceal or keep secret a felony of which he knew. Actual presence at the felony or actual finding of the body was proof positive of knowledge. But other proof of knowledge would suffice, as in the case of the man who retook stolen goods from the thief. All that Staunford did was to state the principle disclosed by the cases.

 

Let no one mistake the high standing of Sir William Staunford. He was a judge of the Common Pleas from Michaelmas, 1554, till his death on August 28, 1558. Foss tells us that he was a great and learned lawyer and he distinguished himself as the author of a highly esteemed Treatise on the Pleas of the Crown which is of great authority. The first edition of it appeared in 1557 during his lifetime and it has been repeatedly followed by subsequent writers. They have often taken his exact words and acknowledged him as the source of what they say. Upon this very subject of misprision of felony you will find him quoted verbatim in 1579 in Rastell’s “Termes de la Ley” [1721 ed., p. 443]; in 1583 in Crompton’s edition of Fitzherbert’s Justices of the Peace (Fitzherbert himself had died in 1538 so his own edition did not mention it); in 1607 in Cowell’s “The Interpreter”; and in 1609 in Pulton’s De Pace Regis et Regni, p. 116. It was quite apparent to the lawyers of that time that Staunford derived his [*558] principle from the “hue and cry” cases; for both Crompton in his Fitzherbert (p. 44), Lambard in his Eirenarcha (1614), p. 289, and Dalton in his Country Justice (1619), p. 284 refer to the “hue and cry” cases and say that a man who is present at a felony and does not raise hue and cry or do anything is guilty of misprision of felony: and they cite the case in 1315 from Fitzherbert, Pleas of the Crown, para. 395.

 

My Lords, if Staunford stood alone, it would suffice. But in 1628 Lord Coke in his Third Institute gave the great imprint of his authority to it. He had evidently studied Staunford’s book with great care – indeed he pays special tribute to him (at p. 138) – and dealing with misprisions, he says (at p. 139): “Now are we to speak of concealment or not discovery of felony. As in the case of high treason, whether the treason be by the common law, or statute, the concealment of it is misprision of treason. So in case of felony, whether the felony be by the common law, or by statute, the concealment of it is misprision of felony. …

 

“And as the concealment of high treason is higher by many degrees than the concealment of felony, so the punishment for the concealment of the greater is heavier than of the lesser, and yet the concealment of felonies in sheriffs, or bailiffs of liberties is more severely punished than in others, viz. by imprisonment by one year, and ransom at the will of the King.” [This is clearly a reference to the Statute of Westminster, 1275, c. 9, and shows that Coke too had in mind the “hue and cry” cases.] “From which punishment if any will save himself he must follow the advice of Bracton, to discover it to the King, or to some judge or magistrate, that for administration of justice supplieth his place, with all speed that he can. …

 

“And this is intended of a concealment, or not discovery” [that is, non-disclosure] “of his mere knowledge: for in case of high treason, he that knoweth it, before it be done, and assenteth to it, is particeps criminis, and guilty of treason; and in case of felony, he that receiveth the thief, and assenteth to it, is accessory.”

 

But great as is the authority of Lord Coke, greater still is the authority of the great Chief Justice Sir Matthew Hale on such a subject as this. Writing about the year 1670 he said in his Pleas of the Crown (1800 ed., vol. 1, p. 374): “By what hath been said touching misprision of treason we may easily collect what is the crime of misprision of felony, namely, that it is the concealing of a felony which a man knows, but never consented [*559] to, for if he consented, he is either principal or accessory in the felony, and consequently guilty of misprision of felony and more.”

 

Now what Sir Matthew Hale there said has ever since been regarded as a correct statement of the law of England. In 1755 it was so treated by Foster J. (himself no mean authority), who quoted it in Rex v. M'Daniel2: and a few years later Sir William Blackstone took it verbatim into the fourth book of his commentaries (1st ed., p. 121), borrowing the rest from Lord Coke: “Misprision of felony is also the concealment of a felony which a man knows, but never assented to; for, if he assented, this makes him either principal, or accessory. And the punishment of this, in a public officer, by the Statute of Westminster I, 3 Edw. 1, c. 9, is imprisonment for a year and a day; in a common person, imprisonment for a less discretionary time; and in both, fine and ransom at the King’s pleasure. …”

 

Every author of any note from that day to this has followed these great names and has said there is an offence of misprision of felony and described it in much the same terms. What need we of any further authority? If Staunford, Coke, Hale and Blackstone all say there is such an offence as misprision of felony, are we to say the contrary? Mr. Edward Clarke invited your Lordships to do so. He said there are no precedents, no recorded cases where any man has been ever indicted for misprision of felony, not from the time that Staunford wrote in 1557 till the year 1938. He said that Staunford made a mistake and all the authors copied from him like automata and fell into error with him. The mere repetition of the cantilena of lawyers cannot, he said, make law. But I would say in answer that there are precedents. There are all the “hue and cry” cases before Staunford wrote. And since he wrote there are records to carry us down to date.

 

In 1813 Thompson B.,3 in his charge to the grand jury at York, drew their attention to the offence of misprision and thus invited them to find a true bill for it.

 

In 1826 Joseph Chitty gives a precedent of an indictment for misprision of felony which he says “was settled by a very able Crown lawyer.” This must have been an actual case. The precedent, after setting out the offence by P.P. the original offender, proceeds as follows: “… did conceal, keep secret, and neglect to discover the said felony so committed by the

 

2 (1755) 19 State Tr. 745, 805.

 

3 (1813) 31 State Tr. 969. [*560]

 

said P.P. as aforesaid, and the name, person, and usual place of resort of the said P.P. did utterly refrain and forbear to disclose and make known …” [Chitty on Criminal Law, 2nd ed., vol. 2, p. 232].

 

In 1852 Parke B. when he went on the Home Circuit addressed the Grand Jury at Lewes in these words as recorded in “The Times” of March 18, 1852: “In the western division particularly a great many felonies were committed of which the parties who were the sufferers by them gave no information to the authorities or the police. He therefore felt himself called upon to say publicly, that it should be known that this proceeding, which was known to the law by the name of 'Misprision of Felony' was a very serious offence, and subjected the persons who were convicted of it to imprisonment for a year. The law with regard to this matter had certainly fallen into desuetude, but it was very necessary that it should be known it still existed, and during the last 20 years he had himself been called upon to make use of it in the county of Durham, and he had sentenced two persons to a year’s imprisonment for having wilfully withheld information relating to an act of felony that had been committed.”

 

We do not know whether any prosecutions for misprision of felony followed upon the words of Parke B. and we have to pass over close on 100 years before we find records of other prosecutions for misprision of felony. And then we find a series of them. Seven or eight were drawn to the attention of your Lordships. I would only mention the case of Mrs. Casserley4 tried by Humphreys J. at the Central Criminal Court in May 1938, the case of Thomas Prothero5 tried by Hilbery J. at the Salop Assizes in June 1949, and the case of Chapman, Wood & Hyde6 [Rex v. Tapp and Others] tried by Devlin J. at the Hampshire Assizes in July 1952. Each of those learned judges accepted pleas of guilty to charges of misprision of felony and passed sentence on them.

 

In the light of this history it is plain that there is and always has been an offence of misprision of felony and that it is not obsolete. It is true that until recently it has been rarely invoked, but that is no ground for denying its existence.

 

This disposes of the first point on which leave to appeal was granted. There remains the second point whether active

 

4 “The Times,” May 28, 1938.

 

5 Unreported, Salop Assizes, June 24, 1949.

 

6 Unreported, Hampshire Summer Assizes, Winchester, July 23, 1952. [*561]

 

concealment is an essential ingredient of the offence. Now the ingredients of the offence can best be seen by comparing it with offences of like degree which have other ingredients.

 

First: Accessory after the fact. The classic definition of an accessory after the fact is when a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon, see 1 Hale P.C. 618, 4 Black. 37. These are all active acts of assistance from which it can be inferred that he assented to the felon going free, in contrast to misprision which consists of concealment only, from which no inference of assent need be drawn. It might be thought that the acts of assistance given by Sykes in the present case would be such as to make him an accessory after the fact. But it has been said that, to make a man an accessory, the assistance must be given to the felon personally, in order to prevent or hinder him from being apprehended or tried or suffering punishment, see 2 Hawkins, Pleas of the Crown, 8th ed., chap. 29, s. 26, p. 445, and 4 Stephen’s Commentaries, 21st ed., chap. 3, p. 31, Reg. v. Chapple,7 Rex v. Levy8: so that if the assistance was not given the felon personally, but only indirectly by persuading witnesses not to give evidence against him (see Roberts’ case9; or if the acts of assistance were done, not to hinder the arrest of the felon, but with another motive, such as to avoid arrest himself (see Rex v. Jones10 or to make money for himself without regard to what happened to the felon (as in the present case), he would not be guilty as an accessory after the fact. It was these limitations on the offence of being an accessory that led to Sykes being charged with misprision of felony.

 

Second: Compounding a Felony. This is the old offence of theft-bote, now made of general application to all felonies and probably also to misdemeanours. Lord Coke says that “this offence is more than misprision of felony, for that it is not a concealment of his bare knowledge only: but theft-bote is when the owner not only knows of the felony, but taketh of the thief his goods again, or amends for the same, to favour or maintain him, that is not to prosecute him, to the intent he may escape …”, see 3rd Inst., p. 134. The offence of compounding a felony in short is an agreement not to prosecute a felon in

 

7 (1840) 9 C. & P. 355.

 

8 [1912] 1 K.B. 158; 28 T.L.R. 93: 7 Cr.App.R. 61, C.C.A.

 

9 (1569) 3 Co.Inst. 139.

 

10 [1949] 1 K.B. 194; 64 T.L.R. 616; [1948] 2 All E.R. 964; 33 Cr. App.R. 33, C.C.A. [*562]

 

consideration of the return of the goods or other reward, see 4 Black. 133, Reg. v. Burgess11: whereas in misprision there need be no benefit. This distinction was overlooked by Lord Westbury in Williams v. Bayley.12 He seems to have thought that for “misprision of felony” the man must not only have concealed his knowledge of the felony but further converted it into a source of emolument to himself. That is essential in compounding a felony, but not in misprision of felony. Lord Westbury’s dictum has been frequently cited as, for instance, in Rex v. Aberg13: but it is not correct and should no longer be relied upon.

 

Third: Interfering with the course of justice. It is an offence at common law to interfere with the course of justice, such as persuading witnesses not to give evidence (Roberts’ case14 or fabricating evidence (Reg. v. Vreones15: or making a false accusation of crime to the police (Rex v. Manley16. But this offence requires something active to be done to pervert the course of justice.

 

Fourth: Obstructing the police. It is an offence by statute wilfully to obstruct any constable or peace officer when in the execution of his duty. This offence is not confined to physical obstruction. If a policeman was investigating a crime, and someone wilfully misled him by false information, he might well be guilty of this offence. But it is one thing to obstruct a policeman. It is another thing to refuse to help him. Take the case in Australia where a man, who was shot and wounded in an affray, refused to disclose to the police the name of the person who had shot him. It would seem that he was engaged in gang warfare, for he said that he would “cop it sweet” if he did disclose the name. He said he would attend to the matter himself, that is, take his own revenge. No civilised community can tolerate such behaviour. But his offence is not obstructing the police. It is misprision of felony, see Reg. v. Crimmins.17

 

It comes to this, therefore, that these other offences require something active to be done to conceal the crime: whereas misprision requires nothing active. The failure or refusal to

 

11 (1885) 16 Q.B.D. 141; 2 T.L.R. 176.

 

12 (1866) L.R. 1 H.L. 200, 220, H.L.

 

13 [1948] 2 K.B. 173, 176; 64 T.L.R. 215; [1948] 1 All E.R. 601; 32 Cr.App.R. 144, C.C.A.

 

14 3 Co.Inst. 139.

 

15 [1891] 1 Q.B. 360; 7 T.L.R. 223.

 

16 [1933] 1 K.B. 529; 49 T.L.R. 130; 24 Cr.App.R. 25, C.C.A.

 

17 [1959] V.R. 270. [*563]

 

disclose the felony is enough. This disposes of the second point on which leave to appeal was granted.

 

This review of the authorities shows that the essential ingredients of misprision of felony are:

 

1. Knowledge. The accused man must know that a felony has been committed by someone else. His knowledge must be proved in the way in which the prosecution have been accustomed in other crimes when knowledge is an ingredient, such as receiving, accessory after the fact, compounding a felony, and so forth. That is to say, there must be evidence that a reasonable man in his place, with such facts and information before him as the accused had, would have known that a felony had been committed. From such evidence the jury may infer that the accused man himself had knowledge of it. He need not know the difference between felony and misdemeanour – many a lawyer has to look in the books for the purpose – but he must at least know that a serious offence has been committed: or, as the commissioners of 1840 put it, an offence of an “aggravated complexion”: for after all, that is still, broadly speaking, the difference between a felony and misdemeanour. Felonies are the serious offences. Misdemeanours are the less serious. If he knows that a serious offence has been committed – and a lawyer on turning up the books sees it is a felony – that will suffice. This requirement that it must be a serious offence disposes of many of the supposed absurdities, such as boys stealing apples, which many laymen would rank as a misdemeanour and no one would think he was bound to report to the police. It means that misprision comprehends an offence which is of so serious a character that an ordinary law-abiding citizen would realise he ought to report it to the police.

 

2. Concealment. The accused man must have “concealed or kept secret” his knowledge. He need not have done anything active: but it is his duty by law to disclose to proper authority all material facts known to him relative to the offence. It is not sufficient to tell the police that a felony has been committed. He must tell the name of the man who did it, if he knows it; the place, and so forth. All material facts known to him, see Reg. v. Crimmins.18 If he fails or refuses to perform this duty when there is a reasonable opportunity available to him to do so, then he is guilty of misprision. He can perform this duty by reporting

 

18 [1959] V.R. 270. [*564]

 

to the police or a magistrate or anyone else in lawful authority. Failure to do so is a misprision of felony.

 

Misprision of felony is itself a misdemeanour and is punishable by fine and imprisonment. Whatever limitations may have existed in olden days on the period of imprisonment that might be imposed, the only limitation now is that it must not be an inordinately heavy sentence.

 

My Lords, it was said that this offence is out of date. I do not think so. The arm of the law would be too short if it was powerless to reach those who are “contact” men for thieves or assist them to gather in the fruits of their crime; or those who indulge in gang warfare and refuse to help in its suppression. There is no other offence of which such persons are guilty save that of misprision of felony.

 

I am not dismayed by the suggestion that the offence of misprision is impossibly wide: for I think it is subject to just limitations. Non-disclosure may sometimes be justified or excused on the ground of privilege. For instance, if a lawyer is told by his client that he has committed a felony, it would be no misprision in the lawyer not to report it to the police, for he might in good faith claim that he was under a duty to keep it confidential. Likewise with doctor and patient, and clergyman and parishioner. There are other relationships which may give rise to a claim in good faith that it is in the public interest not to disclose it. For instance, if an employer discovers that his servant has been stealing from the till, he might well be justified in giving him another chance rather than reporting him to the police. Likewise with the master of a college and a student. But close family or personal ties will not suffice where the offence is of so serious a character that it ought to be reported. In 1315 it was held that it was the duty of a brother to raise hue and cry against his own brother and he was fined for not doing so, see 24 Selden Society, p. 144: and in 1938 a mistress was found guilty of misprision for shielding her lover: (Mrs. Casserley’s case19. The judges have not been called upon further to define the just limitations to misprision, but I do not doubt their ability to do so, if called upon.

 

My Lords, there was some discussion before us whether a man was bound to disclose a contemplated felony which comes to his knowledge, such as a planned raid on a bank. There is a striking passage in Lambard’s Eirenarcha (1614), p. 289, which says that

 

19 “The Times,” May 28, 1938. [*565]

 

failure to do so is misprision of felony. So does Dalton’s Country Justice (1619), p. 211, and Hawkins’ Pleas of the Crown, 8th ed., vol. 2, chap. 29, s. 23, p. 444. These are weighty authorities and the commissioners who reported on the Criminal Law in 1843 were clearly in favour of it. They said: “The necessity for making such disclosures extends, perhaps, with greater force, to the knowledge of a meditated crime, the perpetration of which may, by means of such a disclosure, be prevented, than it does to the knowledge of one already committed.” This is good sense and may well be good law. I would therefore reserve this point which does not arise in the present case.

 

I ought to mention one other matter. Mr. Clarke sought to raise a point of misdirection on which leave to appeal was not granted. He said that, once leave to appeal was given, the appellant in this House can open up all grounds available to the court below. He is not limited to the point on which leave was granted. The Solicitor-General denied this. He said that the appellant was limited to the point of general public importance but the respondent was not. I do not think it necessary to resolve this question today because there is no substance in the point which Mr. Clarke sought to raise. He suggested that the judge had misdirected the jury in drawing their attention to the fact that Kenny had pleaded guilty to receiving. I see no misdirection in the judge telling the jury what they very well knew – Kenny had pleaded guilty in their presence – for the judge had already warned them that the pleas of guilty should not be allowed to prejudice Sykes.

 

I would dismiss the appeal.

 

LORD GODDARD. My Lords, the appellant was convicted at Manchester Crown Court of the misdemeanour known as misprision of felony. His appeal to the Court of Criminal Appeal was dismissed and he applied for and obtained a certificate that a point of law of general public importance was involved and was given leave to appeal to this House limited to two points: (1) Whether there is such an offence as misprision of felony, and (2) Whether active concealment is an essential ingredient of the offence. Before this House counsel for the appellant contended that there never was known to the law such an offence but that if there ever had been it had disappeared by obsolescence and should no longer be indictable. On the question whether there ever was such an offence counsel with immense industry had brought to your Lordships’ notice a very large number of authorities, consisting of extracts from institutional writers on the criminal law, and cases [*566] decided not only in England but in other jurisdictions where the English common law prevails, and the result is, as it appears to me, to show that for centuries there has been communis opinio among all the writers and such of the judges who have had to consider the matter that there is such an offence and no trace of it ever having been doubted until the present case.

 

The first book that was discussed in argument was an edition of Staunford’s Pleas of the Crown published in 1607, some years after the author’s death. He was a judge of the Common Pleas from 1554 to 1558 and seems to have been a fairly prolific writer on the law. He describes misprision as “properly when anyone knows or understands that another has committed treason or felony and will not disclose it to the King or his Council or any magistrate and so conceals the offence,” and then he quotes a passage from Bracton which is wide enough to cover misprision both of treason and felony. No one doubts that misprision of treason was and is a crime and it was specially the subject of a statute, 1 & 2 Ph. & M. c. 10. Mr. Clarke contended that Staunford was mistaken in treating misprision of felony as distinct from treason as a crime and that this mistake has continued and misled all the subsequent writers on the subject. As I understood the argument it was that when the writer refers to treason or felony the or is a misprint or mistake for and. If so it is remarkable that it is repeated three times in the article and has misled, to name only a few, Coke, Hale and Blackstone, all of whom name misprision of felony as a misdemeanour while at the same time they deal with misprision of treason as quite a separate offence. I cannot think that either Staunford or the editor of his work were under any misapprehension on this matter. It is stated to be an offence by Fitzherbert, who was a judge of the Common Pleas from 1522 to 1538. He was the author of “The Natura Brevium” and has always been regarded as a writer of the highest authority. It is in his book entitled “L'Office et Auctoritie de Justices de Peace” that he deals with this offence. An English edition of this book according to Dr. Round was first published in 1538 and frequently republished with additions by Richard Crompton, a bencher of the Middle Temple, and it may well be that some part of the article on misprision was added by the editor as he quotes Staunford in support. That there seem to have been at least six editions of this work, the last in 1617, shows the respect in which it was held. The offence was discussed in detail by Dalton in his “Country Justice,” first published, again according to Dr. Round, in 1618 and held in such high repute that it was constantly republished, the last edition [*567] being dated 1742. It may indeed be described as the eighteenth century “Stone.” Then the offence is described and discussed in detail by Coke in his third Institute and at even greater length by Sir Matthew Hale, who became a judge of the Common Pleas in 1654 and was afterwards Lord Chief Justice of the King’s Bench from 1671 to 1676. His works on the Pleas of the Crown have always been regarded as of the highest authority and are still cited at the present day. Blackstone deals with the matter, quite shortly defining the offence as the concealment of a felony which a man knows but never assented to; for if he assented this makes him either principal or accessory. Before parting with the writers of the eighteenth century, and there are several others, all to the same effect, it is worth noticing the case of Rex v. M’Daniel.20 All the judges had considered at Serjeant’s Inn the effect of a special verdict returned by a jury at the Newgate Sessions and Foster J., who afterwards delivered the judgment, quoted as an authority: “What Lord Hale saith, in 1 Hale 374 – Misprision of felony is concealing a felony which a man knoweth but never consented to for if he consented he is either principal or accessory.” It appears to me, therefore, to be beyond question that at least by the middle of the eighteenth century it was firmly established that misprision of felony was an offence. But I would add that it is not so clear whether the concealment of knowledge that an offence was contemplated is indictable. This indeed is stated by Lambard, Dalton and Hawkins as included in the offence of misprision, but not by any other authority. One can well understand the opinion that it ought to be. It arises out of the recognition that it is the duty of every citizen to assist in the detection and suppression of crime and that prevention is better than cure. The offence may be said to be in the same category as refusing to aid in arresting a suspect when called on by an officer of the law or refusing to comply with the sheriff’s call on the posse comitatus or failing to take part in the hue and cry, but to hold that there was a positive duty to inform the executive that a crime was or might be contemplated might in practice cause many difficulties and as, except for the observations of the three writers to whom I have referred, there is otherwise no authority on the point, as at present advised I hesitate to hold that it is established there is such a duty.

 

But it is contended that the offence is obsolete or fallen in desuetude. On this subject we have the guidance of Lord Sumner

 

20 19 State Tr. 745, 805. [*568]

 

in Bowman v. Secular Society Ltd.,21 where he said: “if [a] maxim expresses a positive rule of law, once established, though long ago, time cannot abolish it nor disfavour make it obsolete.” This in no way detracts from the wisdom of Bacon who, in his Essay on Judicature, observes: “Penal laws if they have been sleepers of long time or if they have grown unfit for present use should by wise judges be confined in execution,” which seems to me to mean should be sparingly enforced. But this law has not been sleeping for a long time. So far I have traced it to the end of the eighteenth century. No doubt it was seldom prosecuted in the nineteenth century, but we have been referred to a report of a charge to the Grand Jury at York by Thompson B. in 1813, from which it appears that in his opinion misprision of felony was indictable as a misdemeanour, and even more striking is it that Joseph Chitty, whose pre-eminence as a pleader both in civil and criminal matters and as an author on many branches of the law is well known, in his second edition of precedents sets out one for this offence with a note that it was settled by a well-known Crown lawyer. Chitty’s works were essentially working books for practitioners and it is most unlikely that he would have included a precedent for this offence if by this time, 1826, it was regarded as obsolete. Then we were supplied with a report of a charge given to the Grand Jury of Sussex in 1852 by Parke B., one of the greatest Victorian judges, in which he said it should be known that failure to give information as to felonies to the authorities, known to the law as misprision of felony, was a very serious offence. That law, he said, had certainly fallen into desuetude but it was very necessary it should be known that it still existed and that during the previous twenty years he had been called on to make use of it. In 1866 Lord Westbury referred to misprision of felony in his speech in Williams v. Bayley,22 though he added a dictum with regard to the constituents of the offence that the concealment must be for the benefit of the person concealing the matter. It seems that his Lordship was momentarily confusing misprision with compounding a felony, which was what the case was concerned with, and in my opinion there is no authority for that dictum and it matters not what induces the concealment. This was the view of the Supreme Court of Victoria whose careful and interesting judgment on this subject in the case of Crimmins23 was delivered as recently as February, 1959. The court emphatically affirmed the

 

21 [1917] A.C. 406, 454.

 

22 L.R. 1 H.L. 200, 220.

 

23 [1959] V.R. 270. [*569]

 

existence of the offence at the present day. Finally, it is to be observed that Sir FitzJames Stephen in 1877 described the offence in his Digest of the Criminal Law.

 

Though in my opinion the offence should be sparingly prosecuted, I am by no means prepared to say that it has no use in our criminal law at the present day; it may well be used when there is technical difficulty in framing a charge of being an accessory after the fact to a felony, and counsel who had acted for the prosecution told us that was the reason for using it in the instant case. Moreover, it is almost a common-place in these days to find the police appealing for persons whom they think must be able to throw light on some serious crime to come forward and give their assistance. And there have been instances quite recently in wounding cases arising out of gang warfare of refusing to assist the police as to the identity of the attackers, whether from fear of reprisals or from a mistaken sense of loyalty. It is very easy to poke ridicule at the offence and say that it obliges people to inform against a boy stealing an apple. The law is nowadays administered with dignity and common sense. And if it is said it obliges a father to inform against his son, or vice-versa, I would answer that in the case of a really heinous crime be it so.

 

In my opinion, therefore, misprision of felony is today an indictable misdemeanour at common law, and a person is guilty of the crime if knowing that a felony has been committed he fails to disclose his knowledge to those responsible for the preservation of the peace, be they constables or justices, within a reasonable time and having a reasonable opportunity for so doing. What is a reasonable time and opportunity is a question of fact for a jury, and also whether the knowledge that he has is so definite that it ought to be disclosed. A man is neither bound nor would he be wise to disclose rumours or mere gossip, but if facts are within his knowledge that would materially assist in the detection and arrest of a felon he must disclose them as it is a duty he owes to the State. The gist of the offence is concealment which may be passive, that is mere non-disclosure, or active in destroying or hiding evidence, though in the latter case it would probably often amount to being an accessory after the fact, and I would add that where it is thought possible and proper to charge a person as an accessory it is preferable to do so rather than have recourse to the offence of misprision. I would also add that it matters not [*570] what induces the concealment, and that the dictum of Lord Westbury24 referred to above should be regarded as incorrect.

 

My Lords, I would dismiss the appeal.

 

LORD MORTON OF HENRYTON. My Lords, in my opinion (1) there is such an offence as misprision of felony, and (2) active concealment is not an essential ingredient of that offence. I gratefully adopt the following passage in the judgment of the Supreme Court of Victoria (Sir Edmund Herring C.J., O’Bryan and Dean JJ.) in Reg. v. Crimmins25: “In our opinion … the citizen’s duty to disclose … any treason or felony, of which he has knowledge, remains the same and is still as binding upon him as it was in the early days of the common law. And no doubt cases will arise, from time to time, when the public interest will be best served by the citizen, who fails in this duty, being prosecuted for misprision of felony. There is certainly no justification for the view that such a prosecution is no longer available to the Crown. The question then is: What are the constituent elements of the crime? We think they are really determined by what we have already said. The offence lies in the failure to perform the duty to disclose … And so it matters not what induced the citizen … not to do his duty.”

 

I refrain from dealing with the earlier authorities on this important matter, as they have been fully discussed in the speeches of my noble and learned friends Lord Denning and Lord Goddard. As to the recent authorities, although I agree with the last sentence in the passage which I have quoted from the judgment in Reg. v. Crimmins,26 I have much sympathy with the view recently expressed by Slade J. when summing up to the jury in the case of Reg. v. Wilde27 at the Leeds autumn assizes on December 14, 1959. That case is shortly reported in the Criminal Law Review, 1960, and a transcript was provided for your Lordships’ use. The learned judge introduced a limitation in putting to the jury the question whether the accused men had failed in their duty to disclose certain thefts by a woman employee. He put the question thus: “Has the prosecution proved beyond reasonable doubt that the nature and extent of her thefts, as known to the accused, was such that a reasonable man would consider it his duty to inform the police of it.” And he added: “I put that in to eliminate the case of the small boy and the

 

24 L.R. 1 H.L. 200, 220.

 

25 [1959] V.R. 270, 272.

 

26 Ibid.

 

27 [1960] Crim.L.R. 116. [*571]

 

windfalls.” Earlier, the learned judge had said: “Counsel … urged upon me not to regard as a sufficiently serious offence to require reporting to the police if you saw, for example, a fifteen-year-old boy picking up a couple of windfalls in your garden and you knew that in fact he had stolen them. In law it is as much a felony as the most serious bank robbery. I have endeavoured, because I prefer to err, if at all, in favour of the accused, to draft a question to embody that limitation.”

 

My Lords, I think the learned judge erred in law in importing that limitation into the offence of misprision of felony; but his words may well be regarded as a valuable indication of the type of case in which a prosecution for that offence is appropriate.

 

I would dismiss the appeal.

 

LORD MORRIS OF BORTH-Y-GEST. My Lords, it was contended on behalf of the appellant that no such offence as misprision of felony has existed in English criminal law and that the manifold references to its supposed existence have been based upon mistaken repetitions of error or misapprehension which were contained in Staunford’s Plees del Coron. Alternatively, it was contended that if this common law misdemeanour was ever known to the law it has now become obsolete so that today no such offence exists. I have had the privilege of reading in advance the speeches which have been delivered by my noble and learned friends Lord Denning and Lord Goddard, and I concur with the view that for centuries misprision of felony has been recognised as an offence. I find no convincing justification of the suggestion that Staunford made a misstatement or a mistake. Furthermore, the words of Coke and of Hale and of Blackstone are as clear as their authority is massive. Not only have they declared that there is such an offence but they have shown that it consists in the concealment of a felony of which a man knows though he has not assented to it.

 

The authorities do not support the view that some active concealment must be proved. If there is knowledge that a felony has been committed then the mere failure and omission to report and disclose what is actually known is an offence. The suggestion contained at one point in the speech of Lord Westbury in Williams v. Bayley28 that the concealment must be of advantage or a source of profit is not founded upon authority. The question whether any offence is committed if there is a failure to disclose

 

28 L.R. 1 H.L. 200, 220. [*572]

 

knowledge that some felony is being planned and projected does not now call for decision.

 

It may well be that long periods passed during which there were no recorded convictions for this offence, but this does not warrant an assumption that in some way or by some process the law became changed. The references in Rex v. M’Daniel,29 in the charge of Thompson B. in 1813,30 and in the charge of Parke B. in 1852, demonstrate that judges regarded the offence as existing at those dates, and several examples of convictions of the offence within this century have been cited.

 

Situations and circumstances can be postulated in which it can be urged that it would seem to run counter to the fitness of things to acknowledge that the offence has been committed. On the other hand, situations and circumstances can also be contemplated in which a failure to disclose knowledge would be condemned as being outrageous. The fact that prosecutions have been, and doubtless will continue to be, infrequent demonstrates that the law is the handmaid of reason.

 

I would dismiss the appeal.

 

LORD GUEST. My Lords, the Court of Criminal Appeal granted leave to appeal to the House of Lords limited to the following points: (1) Whether there is such an offence as misprision of felony. (2) Whether active concealment is an essential ingredient of that offence.

 

Upon the first question I agree with the opinion expressed by my noble and learned friend Lord Goddard that the answer to this question must be “Yes” for the reasons given by him.

 

Upon the second question I also agree with your Lordships who have preceded me that the answer is “No.” Reference has already been made to the numerous institutional writers who have defined this offence, and I cannot find in these writers any statement that active steps of concealment are required to constitute the offence. Staunford’s Plees del Coron (1607), p. 37: “Misprision is properly when anyone knows or understands that another has committed treason or felony, and he will not disclose it to the King or his Council, or any magistrate, and so conceals the offence, this is misprision, which offence Bracton has put amongst the offences of treason, because it seemed to him that concealments sometimes were closer to treason than to a misprision and on that account these are his words …”

 

29 19 State Tr. 745.

 

30 31 State Tr. 969. [*573]

 

He then quotes from Bracton the passage already cited. The writers who follow in describing misprision of felony refer to the failure to disclose the commission of a felony as an offence of omission. If more active steps were required to constitute the offence of misprision of felony, this would equiparate the offence to that of being accessory after the fact, which is an entirely distinct offence. Sir Basil Nield, in his summing-up to the jury, incorporated in his definition of misprision of felony the conception of deliberate concealment which would suggest that the concealment must be wilful. There is, in my opinion, no sufficient justification in the authorities for limiting the offence in this way. The offence consists in a mere omission to disclose a felony.

 

Sir Basil Nield also directed the jury that the concealment must be for gain or reward to the misprisor. I have no doubt that this direction was derived from an expression of an obiter dictum of Lord Westbury in Williams v. Bayley,31 where he said: “If men were permitted to trade upon the knowledge of a crime, and to convert their privity to that crime into an occasion of advantage, no doubt a great legal and a great moral offence would be committed. And that is what, I apprehend, the old rule of law intended to convey when it embodied the principle under words which have now somewhat passed into desuetude, namely, 'misprision of felony.' That was a case when a man, instead of performing his public duty, and giving information to the public authorities of a crime that he was aware of, concealed his knowledge, and, further, converted it into a source of emolument to himself.” There is, in my opinion, no warrant for this limitation, and the direction which was, of course, favourable to the accused did not correctly express the law.

 

I would, for these reasons, refuse the appeal.

 

Appeal dismissed.

 

31 L.R. 1 H.L. 200, 220.