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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Maxwell & Ors v HM Advocate [1980] ScotHC HCJAC_3 (21 March 1980) URL: http://www.bailii.org/scot/cases/ScotHC/1980/1980_JC_40.html Cite as: [1980] ScotHC HCJAC_3, 1980 JC 40, 1980 SLT 241

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21 March 1980

At advising on 23rd October 1979, the opinion of the Court was delivered by Lord Cameron.

Lord Cameron. —

The applicants were charged on indictment with conspiracy to effect a criminal purpose and with certain acts carried out in pursuance of this conspiracy. The charge of conspiracy was in alternative form in that the applicants and a fourth man were charged with conspiring with each other to effect a criminal purpose namely, “Either to obtain from 0Pleasurama Casinos Limited, 7 Welbeck Street, London, the holding Company of said Cigaro (Glasgow) Limited, the sum of £10,000 as a consideration for bribing or otherwise improperly influencing, or attempting so to bribe or influence, one or more members of the City of Glasgow District Licensing Board, being the authority responsible for the grant, renewal, cancellation or transfer of licences under the Gaming Act 1968, improperly to approve the grant to Pleasurama Casinos Limited of the transfer of a Gaming Licence in the name of said Cigaro (Glasgow) Limited, from the premises known as The Cigar Club, 69/71 Tollcross Road, Glasgow, to the premises known as The Albert Ballroom, 285 Bath Street, Glasgow; Or to defraud the said Pleasurama Casinos Limited, the holding Company of said Cigaro (Glasgow) Limited, of £10,000 by a fraudulent pretence that in return for a payment of the sum of £10,000 you would bribe or otherwise improperly influence or attempt so to bribe or influence, one or more of the members of the said City of Glasgow District Licensing Board …”

The jury convicted all three as libelled in the first alternative of this charge. The applications for leave to appeal are based on four alleged grounds—“(1) Relevancy & Competency of charge. (2) Insufficiency of evidence. (3) Incorrect charge by Judge. (4) Sentence.” It is to be noticed that these grounds are wholly lacking in specification as to the alleged irrelevancy or incompetency of the charge and, more seriously, as to the alleged incorrect charge by the Judge.

The first applicant, Maxwell, was represented in his application by the Dean of Faculty. In opening his submission the Dean indicated that at this stage he was not seeking to found his application upon the second of the stated grounds but would await in this matter the submissions of his co-applicants. As regards the first ground of appeal the Dean indicated that his submission there was necessarily bound up with what he had to present in support of the third of his grounds of appeal.

The major charge in the indictment in the first alternative was essentially one of conspiracy to bribe members of the Licensing Board to do something, namely improperly to approve the transfer of a gaming licence to certain premises in favour of the company named in that charge. The essence of the matter was therefore the transfer of the licence and that was the object of the conspiracy. In his charge, the presiding Judge presented the issue to the jury on the basis that it was admittedly impossible to achieve the stated object of the conspiracy which it was said was to obtain, in January 1978, the desired transfer. The reason for this, as to which there was no dispute, was that at this time the issue of the transfer of the particular licence was out of the hands of the Licensing Board whose decision, made as the result of an application in May 1977, was under appeal to the Sheriff.

The procedure for transfer was governed by the provisions of Schedule 2 of the Gaming Act 1968 and there was no doubt that the objective of the scheme was impossible of achievement in January 1979. In these circumstances, while the presiding Judge was correct in directing the jury that it was factually impossible for anyone to bribe members of the Licensing Board and as a result to get the desired transfer at the end of January, he was wrong in leaving the matter to the jury and leaving it open to them to convict the applicants on the charge as laid against them in the first alternative in the indictment. The admitted fact that the objective of the scheme libelled could not be achieved in January 1978 should have led the presiding Judge to direct the jury that upon the first alternative of the charge of conspiracy they must acquit the applicants. Where an alleged criminal purpose is physically impossible of achievement then a charge of conspiracy to achieve such a purpose is necessarily irrelevant, and should it appear on evidence in support of an indictment ex facie relevant that such was the fact, then the only proper direction must be one to acquit. Such a direction was required in this case and was not given. Indeed the presiding Judge directed the jury precisely in the contrary sense. This was a fatal misdirection and the jury's verdict given on such a misdirection could not stand. On this ground alone the applicants' conviction should be quashed. The argument was thus simple and pointed. A result which could not be achieved could not be criminal. Therefore an agreement however dishonest in intent to achieve a result which was impossible to effect could not amount to a criminal conspiracy.

In support of this submission the learned Dean relied on decisions in certain well-known Scottish authorities and on two recent English decisions of the House of Lords which were thought to be persuasive.

The Scottish cases on which the Dean relied were H. M. Advocate v. Anderson 1928 J.C. 1; H. M. Advocate v. Semple 1937 J.C. 41 and Lamont v. Strathern 1933 J.C. 33. In the case of Anderson an indictment charged the accused with the performance of an operation on a woman believing her to be pregnant for the purpose of causing her to abort and so attempting to cause abortion, was held to be irrelevant for lack of the averment that the woman was in fact pregnant at the time. In the later case of Semple a charge of supplying powders to a woman in the belief that she was pregnant and with intent to cause her to abort, was held to be irrelevant for the same reason, namely, the absence of any averment that the woman was pregnant. Anderson's case was expressly approved in Semple. The intervening case of Lamont was one of attempting to steal from the pocket. It was there held that it was not necessary for relevance or conviction that it should be libelled that there was anything in the pocket to be stolen.

The English cases of R. v. Smith [1975] AC 476 and D.P.P. v. Nock [1978] A.C. 979 were concerned with very different matters. The decision in the first turned on an interpretation of section 24(3) of the Theft Act 1968 which, of course, has no application in Scotland and the second was concerned with an alleged conspiracy to produce the controlled drug cocaine (a statutory offence) by extracting it from a particular powder which, unknown to the accused, contained no cocaine at all.

In order to deal with the Dean's argument and the authorities on which that argument relied, it is necessary to consider what constitutes the crime of conspiracy according to the law of Scotland. That crime is constituted by the agreement of two or more persons to further or achieve a criminal purpose. A criminal purpose is one which if attempted or achieved by action on the part of an individual would itself constitute a crime by the law of Scotland. It is the criminality of the purpose and not the result which may or may not follow from the execution of the purpose which makes the crime a criminal conspiracy.

In the present case the stated object of the conspiracy was to corrupt persons holding public office and entrusted by statute with the honest discharge of comparatively important administrative functions. The method of corruption libelled was bribery. There can be no doubt, of course, that to bribe or attempt to bribe such persons to act improperly or dishonestly in the discharge of their official duties is itself a crime of extreme gravity. Whether corruption attempted or achieved has the further consequence of actual perversion or dereliction of duty or of the exercise of improper or dishonestly motivated influence raises a separate and independent question and the results or objective of the corruption are themselves very different matters. The vital element in the crime is corruption actual or attempted. Corruption is the purpose and corruption the object: it is therefore difficult to see how it does not necessarily follow that once this is done or attempted to be done the crime is complete. The criminal intent is there—the actus is the offer or acceptance of the bribe or inducement and the mens rea in respect of the criminal intent is sufficient to make the actus reus. Should the bribe fail for any reason to lead to the desired result or should the bribe offered be refused the consequence can scarcely absolve the act of its criminal quality. The corruption or attempt to corrupt has taken place and, therefore, the crime is complete if it is a crime to corrupt or to attempt to corrupt. Nothing can undo what has in fact been done and if what in fact has been done is itself criminal that would seem to be the end of the matter. What has been done and cannot be undone, is to strike a blow at the integrity of public administration.

The argument that because of the accident of events or physical causes beyond or outwith the control or even the knowledge of the corrupting agent the ultimate objective of the plan to corrupt or attempt to corrupt cannot be achieved is itself enough to deprive what otherwise is a completed criminal act of its criminal quality, appears on the face of it somewhat startling. If sound this could place criminal responsibility at the whim of extraneous events wholly divorced from the criminally directed actions of the participants themselves. The fallacy in this argument lies in the confusion between the criminal purpose of the conspiracy, i.e., corruption by bribery, and the intended result or consequence of that corruption. Once a bribe has been offered, accepted, or received, or even rejected, the crime of corruption or attempted corruption has been committed. Suppose the situation in which the recipient of a bribe has been arrested on information received by the police before he was able to take any action to earn his bribe: in such a case upon what basis of reason could it be said that he and those responsible for bribing him were thereby absolved from the initial criminality of their actions. To argue thus would appear to confuse the criminal act of corruption with the results which it was hoped would follow a successful act of bribery.

It was urged however by the learned Dean that his proposition was to be deduced from the authorities he cited. When these are examined, however, they do not provide the support which he claims. The basis of the decision in the case of Anderson is to be found in Lord Anderson's opinion. He said “the ground of my judgment is that in a charge of procuring or attempting to procure abortion which is a charge of attempting to commit a well known crime, the prosecution must libel, and to secure a conviction, must prove that the patient was pregnant. This proposition seems to be made good by consideration of what is involved in the crime by having regard to the presumptive reasons whereby the acts resulting in abortion are criminal. Abortion in the sense of the criminal law is held to be criminal because its successful accomplishment results in the destruction of potential human life. That is the main consideration.” As we have said the case of Anderson was approved in Semple in which the Lord Justice-Clerk (Aitchison) said “I have not the slightest doubt that Lord Anderson was right in holding that on the terms of the libel with which he had to deal it did not set out the crime of attempting to procure abortion.” Lords Fleming and Moncrieff agreed with the Lord Justice-Clerk and no doubt was cast on Lord Anderson's reasoning or the main consideration on which he based his judgment. These authorities have now stood unchallenged on reasoning or decision for almost half a century. The last Scottish case founded on by the Dean is that of Lamont, which decided that an attempt to steal from a pocket is still an attempt to steal and therefore a criminal act even if it be shown that there is nothing in the particular pocket to be stolen, i.e. that the intended result of the act can be frustrated by an event or events which lay beyond the control of the actor or were even unknown to him. The case of Anderson was cited but distinguished but nothing was said by Lord Sands to cast doubt on the soundness of the decision or the reasoning on which it was based. If Lamont is sound in its reasoning, then it matters not that for reasons beyond their control the result which the applicants represented as being possible of achievement by bribery could not be so achieved because “the pocket was empty,” which is the same thing as saying that the pocket had been emptied before the thief or intended thief got at it.

So far as the cases of Smith and Nock decide the particular issues which arose in them it does not appear to us that the decisions are of material assistance in the solution of the problem raised in the present appeal. In the case of Smith the decision turned upon the fact that owing to the somewhat curious terms of section 24(3) of the Theft Act the goods which formed the subject matter of a charge of handling stolen goods in contravention of section 22(1) of that Act, could not be treated as stolen. The facts disclosed that the goods in question had been in the custody of the police when the alleged offence took place. Section 24(3) provided that no goods should be regarded as having continued to be stolen goods after they have been restored to the person from whom they were stolen or to other lawful possession or custody. The basis of the decision, therefore, was that the accused were handling goods—albeit with dishonest intent—which at the time were not, in law, stolen goods. There is no parallel here with what the applicants were found to have done. They were “handling” or seeking to “handle” or manipulate dishonestly members of the Licensing Board—not persons who turned out to be something other than members of that Board—so the attempted parallel is fatally halted. The case of Nock is equally far off the mark. The substance which was libelled as that which the accused were seeking to produce could not be produced by the means which were of the essence of the plan. Therefore to enter into an agreement to produce that substance in the mistaken belief that it could be produced in a particular way constituted no crime. Here there was no mistake as to character of the persons to be corrupted. We do not think it necessary or helpful to the decision of this case to enter upon consideration of the full and valuable discussions in the opinions of their Lordships beyond the actual decisions at which they arrived.

In our opinion the argument presented upon the relevant authorities on behalf of this applicant, Maxwell, is not supported by them nor is it supported upon what we regard as a correct application to this indictment of the learned Judge's charge and the common law of conspiracy in our law.

But in addition to this there is a further obstacle in the way of the applicant's success. The indictment does not specify at what sitting or date was the transfer of the licence referred to to come before the Licensing Board. The presiding Judge, while indicating very rightly that, as the evidence disclosed this, the question of transfer on an application already made and refused by the Board, and in fact under appeal to the Sheriff, could not be dealt with by the Board in January 1978. He also rightly pointed out that this did not disable the jury from considering the first alternative of the charge of conspiracy libelled in the indictment. As things stood a renewed application could be made in May and there is nothing in the language of the indictment which, in relation to the first alternative of the conspiracy charge, purported to limit the proposed action to any specific date or sitting. Therefore, the fact that no application for transfer could competently be presented to or determined by the Board in January was not in any sense fatal to the relevancy or competency of the charge libelled in the first alternative in the indictment.

Upon either of these grounds we are of opinion that the learned Dean's attack on the presiding Judge's charge fails and this is sufficient for rejection of the first and third grounds of appeal stated for the applicant Maxwell and for Dougherty who merely adopted the Dean's submissions.

For the applicant Low Mr Vandore, while adopting the learned Dean's argument, presented additional submissions under reference to the first and third grounds.

The first was that the charge was, in the first alternative, irrelevant. To libel a conspiracy to bribe or to attempt to bribe members of a Licensing Board to act corruptly would be a perfectly relevant charge. This charge, however, is stated to be one of a conspiracy to obtain money as a consideration for bribing or attempting to bribe such persons. In essence, therefore, it was a charge of a conspiracy to obtain money. To obtain money is not a crime however dishonest may be the purpose to which the person who obtains it may intend to apply it. In our opinion the first charge which, no doubt could have been drafted with greater clarity and precision, is properly to be read as a charge of conspiracy to bribe or to attempt to bribe and to that end to obtain money as a consideration for carrying out that criminal purpose. So understood it is a perfectly relevant libel of a conspiracy to effect a criminal purpose. In these circumstances Low's application, so far as it rests on this separate submission, and on the argument presented by the learned Dean of Faculty for Maxwell, in support of the first of the stated grounds, falls to be refused.

The second separate submission for Low proceeded upon the contention that if the charge in the first alternative was relevant it was so badly framed that it was vitally important for the trial Judge to focus clearly for the jury the real purpose of the conspiracy. This the trial Judge failed to do. Instead, it was said, he directed the jury in such a way as to indicate that the essential purpose of the conspiracy was to obtain money. We reject this submission also. The trial Judge correctly appreciated that the underlying purpose of the conspiracy libelled was to bribe or attempt to bribe members of the Licensing Board to act corruptly, and that the agreement to obtain money which was averred must be understood to be an agreement in furtherance of the underlying criminal purpose of the alleged conspiracy. The learned Judge made that sufficiently clear to the jury in two separate passages of his charge. It follows, accordingly, that Low's application in so far as it was based on the third ground stated, fails also.

The remaining ground upon which we heard submissions from Counsel for the applicants Dougherty and Low and from the learned Advocate-Depute was the alleged insufficiency of the evidence to entitle the jury to hold (i) that there was any such conspiracy as was libelled or (ii) that Dougherty and Low were parties to such a conspiracy. Upon this ground we are satisfied that the applications of all three applicants must be allowed so that we can determine the sufficiency of the evidence or otherwise upon a consideration of the Notes of Evidence.

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