Criminal Law – Conspiracy to defeat justice – False evidence – Untrue statement of fact act knowing whether it is true or not: R v Mawbey and others, COURT OF KING’S BENCH [1775-1802] All ER Rep 457, Also reported 6 Term Rep 619; 101 ER 736 HEARING-DATES: 25 APRIL 1796 25 April 1796 (United Kingdom)
R v Mawbey and others
COURT OF KING’S BENCH
[1775-1802] All ER Rep 457, Also reported 6 Term Rep 619; 101 ER 736
HEARING-DATES: 25 APRIL 1796
25 April 1796
Criminal Law – Conspiracy to defeat justice – False evidence – Untrue statement of fact act knowing whether it is true or not.
The offence of conspiring to obstruct or defeat the course of justice is committed when two or more persons put before the court evidence which they know to be false or state as true a fact which is not true without knowing whether it is true or not. Per LAWRENCE, J: This is not unlike the case of perjury where a man swears to a particular fact without knowing at the time whether the fact be true or false. It is as much perjury as if he knew the fact to be false.
Rule Nisi calling on the prosecutor to show cause why a judgment on an indictment should not be arrested.
An indictment was preferred against the defendants, Sir Joseph Mawbey, James Liptrott, Ralph Leycester, and Edward Cooper, at the general quarter sessions of the peace held for the county of Surrey in October 1794, which stated that at the Summer Assizes in 1791 a bill of indictment was preferred against the inhabitants of the parish of Windlesham in Surrey for not repairing parts of a highway therein described. At the ensuing spring assizes on 21 March 1792, H Lee and E Hammond, two inhabitants of the parish of Windlesham, for themselves and the rest of the inhabitants of the parish pleaded Not Guilty to that indictment, and issue was joined thereon. At the next assizes on 8 August 1792, H Lee and E Hammond by leave of the court withdrew their plea of Not Guilty and pleaded Guilty, whereupon the court proceeded to inquire into the state and condition of the parts of the highway which were alleged to be out of repair. The present indictment stated that the two defendants Mawbey and Liptrott were justices of the peace for the county of Surrey and the other two defendants, Cooper and Leycester, were inhabitants of the parish of Windlesham, and alleged that the defendants conspired to obstruct and pervert the due course of justice and to deceive and impose on the court at which the inquiry was made by producing in evidence a certain paper writing under the hands and seals of the defendants, Sir Joseph Mawbey and J Liptrott, dated 24 July 1792, as and for a true certificate in writing under their hands and seals as such justices touching and concerning the parts of the highway alleged to be out of repair, which they thereby certified to be in sufficient repair, whereas the highway was on 24 July 1792, at the time of making the inquiry, and also at the time when the defendants exhibited in evidence the certificate, ruinous suit in great decay, as the defendants know at the time of their producing and exhibiting the said paper writing in evidence. On the trial at the Spring Assizes in 1795, the defendants Cooper and Leycester were acquitted, and the other two defendants, Mawbey and Liptrott, were found guilty. In Hilary Term, 1796, a rule was obtained calling on the prosecutor to show cause why the judgment should not be arrested.
Followed: Omealey v Newell (1807) 8 East, 364. Referred to: King v R (1849) 14 QB 31; Joliffe v Baker (1883) 11 QBD 255.
As to obstruction of the course of justice, see 10 HALSBURY’S LAWS (3rd Edn) 631; and for cases see 15 DIGEST (Repl) 840-844.
Cases referred to:
(1) Anon (1672) 3 Salk 183; T Raym 215; 83 ER 112; 26 Digest (Repl) 417, 1258.
(2) Leyton’s Case (circa 1625-1648) unreported.
(3) R v Randall (1662) 1 Keb 256; 83 ER 932; 22 Digest (Repl) 312, 3249.
(4) R v Cluworth (Inhabitants) (1704) 6 Mod Rep 163; 1 Salk 359; Holt, KB 339; 91 ER 313; 26 Digest (Repl) 382, 913.
(5) Broughton v Randall (1596) Cro Eliz 502; 78 ER 752; 22 Digest (Repl) 168, 1536.
Farhill showed cause against the rule.; Erskine and Serjeant Shepherd supported the rule.
PANEL: Lord Kenyon CJ, Ashhurst, Grose and Lawrence JJ
JUDGMENTBY-1: LORD KENYON CJ:
LORD KENYON CJ:
Notwithstanding the arguments that have been urged on behalf of the defendants, it appears to me that the conspiracy is sufficiently charged in the indictment. The first count alleges that, pending the prosecution against the inhabitants of the pariah of Windlesham for not repairing a road, the two defendants, together with two other persons, conspired to obstruct the due course of justice; that after the parish had pleaded Not Guilty and before they lead withdrawn that plea the defendants conspired to produce in evidence a certain paper-writing as and for a true certificate under the hands and seals of these two defendants as justices, stating that the road was in repair; that afterwards in pursuance of this conspiracy they produced to the court the said paper-writing as and for a true certificate, but that in truth the road was out of repair; and so the defendants knew at the time of producing it in evidence. It has been ingeniously argued that the indictment should have alleged that at the time of the conspiracy the defendants knew that the road was out of repair. But I think that they should have known that the road was in repair before they agreed to certify that it was so. If at that time they did not know whether or not the road was in repair and yet agreed to certify to the court that it was, that is sufficient to constitute the delinquency of the defendants. Therefore, it seems to me that the conspiracy is properly charged in the indictment.
I cannot adopt the argument used by the defendants’ counsel that these two defendants were not competent to conspire, on the ground that this must be taken only to be the act of one person. It is widely different from the instance put of husband and wife, to which it was compared, where the wife is not supposed to have an opinion of her own. Here neither of these magistrates was so subjected to the other as to be incapable of judging and acting for himself. They were free agents, independent the one of the other, and consequently were in a condition to conspire.
Another objection was that it does not belong to the situation of these defendants as justices to certify that the road was in repair, and that such a certificate is not a legal instrument of which a court of law can take cognisance. How or when these certificates originated it may perhaps be difficult to ascertain, but it is not necessary now to trace their origin. The practice of receiving these certificates is now become too inveterate to be overturned. Perhaps they are received as coming from persons who are considered in the law fide digni, though I am not sure that it would not be an indictable offence in other persons, not justices of the peace, to take upon themselves to make a false certificate under an agreement and conspiracy to mislead a court by giving them false information. I admit that it is a voluntary act in the magistrates to certify, but, if they do undertake to make a certificate, they ought to know that its contents are true. Therefore, on the best consideration that I have been able to give to the case, I am of opinion that this is an indictable offence, and that it is sufficiently charged in the indictment.
JUDGMENTBY-2: ASHHURST J:
The practice of receiving certificates signed by magistrates respecting highways is very general, and of ancient date. I can speak to this practice ever since I have known the profession, and a practice that has been recognised in courts of law for such a length of time would go a great way to convince me that it was a legal practice. But this does not rest merely on the practice which has obtained; the authorities referred to in support of the prosecution carry the point still further. The principal question is whether a conspiracy to pervert the course of justice by producing in evidence a false certificate be or be not a crime. It seems to me that a greater offence can hardly be stated than that of obstructing or perverting the course of justice, on which the lives and properties of all the subjects depend. With regard to the manner in which the conspiracy is charged in the indictment, I think that all the requisites are sufficiently alleged.
JUDGMENTBY-3: GROSE J:
I agree with counsel for the defendants that in order to constitute a conspiracy more than one person must be concerned. It is said, however, that thesetwo defendants are to be considered only as one person, but it might as well be said that, if all the justices of the county had agreed to do the thing that was done in this case, it might be taken to be only the act of one person. Another objection was that it was not stated in the indictment that the defendants knew at the time of the conspiracy that the road was out of repair. I do not think that that is the gist of the offence, for if two persons, with an intent to obstruct the course of justice, conspire to state a fact as true which they do not know to be true it is criminal. They are bound to know that the fact is true which they agree to certify as such. In many cases an agreement to do a certain thing has been considered as the subject of an indictment for a conspiracy, though the same act, if done separately by each individual without any agreement among themselves, would not have been illegal. As in the case of journeymen conspiring to raise their wages, each may insist on raising his wages, if he can, but, if several meet for the same purpose, it is illegal, and the parties may be indicted for a conspiracy.
It is laid down in some of the cases, that an attempt to persuade another not to give evidence in a court of justice is indictable. It cannot be doubted but that an attempt to mislead the court by misrepresentation is equally criminal. We find that as far as can be traced it has been usual for the judges, before they assess a fine on a parish for not repairing a road, to inquire into the actual state of the road, and to receive a certificate of magistrates for that purpose. This was the course of the court in the time of Charles II, as appears in Sir T Raym 215 (Anon (1)) and if the course of the court, it must have been the law of the court. The course of justice is perverted if the certificate of the justices be false. If they agree to certify that a road is in repair for the purpose of perverting the course of justice, it is a crime and indictable, and it is not necessary that they should know at the time of such agreement that the road is out of repair. It is sufficient that they did not know that the fact which they certified to be true was true.
JUDGMENTBY-4: LAWRENCE J:
The objections made on the part of the defendants may be reduced to two: (i) that the indictment has not sufficiently charged a conspiracy by the defendants; (ii) that, if properly charged in point of form, it is not a charge of such an act as can have any effect, and, therefore, that it is not criminal to conspire to do that act. The answer that has already been given to the first is decisive. It is not necessary that the defendants should have known that the road was out of repair. They are charged with conspiring to pervert the course of justice by producing in evidence a certificate that the road was in repair, and if this charge be established in fact, it is an offence of considerable magnitude against the administration of the justice of the country. This is not unlike the case of perjury where a man swears to a particular fact without knowing at the time whether the fact be true or false. It is as much perjury as if he knew the fact to be false, and equally indictable.
The next question is whether a conspiracy to do an act from which the public may receive any damage be or be not indictable. At first I thought this a very doubtful case, because it struck me that this was an act by which the public would not suffer as the court at the assizes were not bound to receive the certificate of the defendants, it not being on oath. But on examination it appears that the practice of receiving the certificates of magistrates respecting the state of roads has existed as far as the memory of living persons extends, and the books carry it still further back. In the reign of Charles I in Leyton’s Case (2) it appears that a certificate of some kind was in use, and R v Randall (3) shows that it was a certificate by justices of the peace “else the justices must certify that it is no encroachment.” It was said in answer that all the cases on this point, except Anon (1) were applications to the favour of the court in a summary way to quash the indictment, but in addition to Anon (1) there is another case in 6 Mod Rep 163 (R v Cluworth (Inhabitants) (4)) where after verdict
“the court, before they would set a fine, would be certified by some of the justices of the peace of the neighbourhood that the way was sufficiently repaired; which they did.”
I have not been able to discover how or when the practice of receiving these certificates arose, but a practice that has been adopted in the courts at least as long back as the [1775- 1802 All ER Page460] reign of Charles I goes a great way to show what the law is upon the subject. This is not the only instance of receiving certificates in evidence. Certificates of bishops with respect to marriages are received; the customs of London are certified by the recorder; so formerly were certificates received from the captain of Calais; and in Broughton v Randall (5) this court said they would give credit to the certificate of the judges in Wales respecting the practice of their court and that the custom of a court is a law in that court.
Rule to arrest the judgment discharged.