Director of Public Prosecutions v. Bhagwan

Publisher	United Kingdom: House of Lords (Judicial Committee)
Author	House of Lords
Publication Date	23 July 1970
Citation / Document Symbol	[1972] AC 60, [1970] 3 All ER 97, [1970] 3 WLR 501, 54 Cr App Rep 460, 134 JP 622
Cite as	Director of Public Prosecutions v. Bhagwan, [1972] AC 60, [1970] 3 All ER 97, [1970] 3 WLR 501, 54 Cr App Rep 460, 134 JP 622, United Kingdom: House of Lords (Judicial Committee), 23 July 1970, available at: https://www.refworld.org/cases,GBR_HL,3ae6b6c924.html [accessed 3 June 2023]
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Director of Public Prosecutions v Bhagwan

HOUSE OF LORDS

[1972] AC 60, [1970] 3 All ER 97, [1970] 3 WLR 501, 54 Cr App Rep 460, 134 JP 622

Hearing Date: 22, 23, 24 June, 23 July 1970

23 July 1970

Index Terms:

Criminal law - Conspiracy - Conspiracy to commit act injurious to public interest - Conspiracy to evade controls on immigration - Evasion of examination on landing - Whether unlawful as tending to defeat intent and purpose of staute - Commonwealth Immigrants Act 1962, Sch 1, Part 1, para 1.

Held:

The respondent, a Commonwealth citizen to whom the provisions of the Commonwealth Immigrants Act 1962 applied, landed, with others, at a point on the English coast where there was no immigration officer so that he was not examined in accordance with para 1 of Part 1 of Sch 1 to theAct a. He was charged with conspiracy to evade the control on immigration of Commonwealth citizens into the UK in order that he might enter the UK without, on landing, submitting himself for examination.

a Schedule 1, para 1, is set out at p 100 f, post

Held - No offence had been committed by the respondent, because --

(i) there was under the 1962 Act no duty imposed by implication on a Commonwealth citizen to present himself to an immigration officer for examination on his arrival in the United Kingdom (see p 98 d to f and p 103 j, post);

(ii) although the landing of immigrants at a place where there was no immigration officer might defeat the intention of the Act, it could not be held to be a criminal offence for any person, whether or not he acted in concert with others, to do acts which were neither prohibited by Actof Parliament nor at common law and did not involve dischonesty or fraud or deception, merely because the object which Parliament hoped to achieve by the Act might be thereby thwarted (see p 98 d to f, p 105 b and p 106 g, post).

Per Curiam. It is not an offence at common law to agree to 'act to the prejudice of the State' unless the means adopted are unlawful or the prejudice likely to be caused falls within one of the established categories of public mischief which have been held by existing decisions of the courts to be so contrary to public policy as to justify the imposition of penal sanctions (see p 98 d to f, and p 105 j to p 106 a, post).

Re Yeoland's Consols, Manley's Case (1890) 2 Meg 74 and Shaw v Director of Public Prosecutions [1961] 2 All ER 446 distinguished.

Dictum of Lord Goddard CJ in R v Newland [1953] 2 All ER at 1072 criticised.

Decision of the Court of Appeal sub nom R v Bhagwan [1970] 1 All ER 1129 affirmed.

Notes:

For conspiracy, see 10 Halsbury's Laws (3rd Edn) 310-314, paras 569, 570, and for cases on the subject, sec 14 Digest (Repl) 121-125, 851-869.

For the examination of Commonwealth immigrants, see Supplement to 5 Halsbury's Laws (3rd Edn) para 1514, and for offences in connection with the control of immigration, see ibid para 1515.

For the Commonwealth Immigrants Act 1962, Sch 1 (as originally enacted), see 42 Halsbury's Statutes (2nd Edn) 21. The Commonwealth Immigrants Act 1962 has been amended by the Commonwealth Immigrants Act 1968.

Cases referred to in the Judgment:

R v Newland [1953] 2 All ER 1067, [1954] 1 QB 158, [1953] 3 WLR 826, 117 JP 573, 37 Cr App Rep 154, 15 Digest (Repl) 913, 8787.

Shaw v Director of Public Prosecutions [1961] 2 All ER 446, [1962] AC 220, [1961] 2 WLR 897, 125 JP 437, 45 Cr App Rep 113, Digest (Cont Vol A) 339, 919a. Yeoland's Consols, Re, Manley's Case (1890) 2 Meg 74, 9 Digest (Repl) 269, 1694.

Introduction:

Appeal. This was an appeal by the Director of Public Prosecutions against an order of the Court of Appeal (Widgery and Cross LJJ and Brabin J) dated 17th February 1970 and reported [1970] 1 All ER 1129, allowing the appeal of the respondent Dharam Singh Bhagwan against his conviction at the Central Criminal Court (Judge Humphreys QC) on 22nd October 1969 on his plea of guilty to a charge of conspiracy to evade the control on immigration imposed under the Commonwealth Immigration Act 1962. The facts are set out in the opinion of Lord Diplock.

Counsel:

R D L Du Cann for the Crown. V K Winstain and D M Hogg for the respondent.

Judgment-READ:

Their Lordships took time for consideration. 23rd July.The following opinions were delivered.

PANEL: LORD REID, LORD MORRIS OF BORTH-Y-GEST, LORD HODSON, LORD GUEST AND LORD DIPLOCK

Judgment One:

LORD REID. My Lords, for the reasons given by my noble and learned friend, Lord Diplock, I would dismiss this appeal.

Judgment Two:

LORD MORRIS OF BORTH-Y-GEST. My Lords, for the reasons given by my noble and learned friend, Lord Diplock, I would dismiss this appeal.

Judgment Three:

LORD HODSON. My Lords, for the reasons given by my noble and learned friend, Lord Diplock, I would dismiss this appeal.

Judgment Four:

LORD GUEST. My Lords, for the reasons given by my noble and learned friend, Lord Diplock, I would dismiss this appeal.

Judgment Five:

LORD DIPLOCK. My Lords, the respondent, Mr Dharam Singh Bhagwan, was a Commonwealth citizen. This means that he was a British subject but, as he was a citizen of India and not a citizen of the United Kingdom and colonies and did not hold a United Kingdom passport, the Commonwealth Immigrants Act 1962 applied to him. As he did not hold an employment voucher issued for the purposes of the Act he was liable to be refused admission to the United Kingdom by an immigration officer, when he came here in 1967.

I am prepared to assume, for the purposes of this appeal, that there was a strong likelihood that, if he submitted himself to examination by an immigration officer, the respondent would be refused admission and that he was well aware of this. What he did was to arrange to be landed in this country (together with a number of compatriots) from a small vessel on a deserted beach and so avoided encountering an immigration officer within 24 hours of his arrival. Under the Act, as it then stood, he could not be refused admission unless, within 24 hours of landing, he had been required by an immigration officer to submit to examination. By avoiding such examination he has obtained the right to remain in this country permanently.

It is conceded that in landing in this manner the respondent committed no statutory offence under the Act, as it stood in 1967. To do so did not become an offence until the passing of the Commonwealth Immigrants Act 1968. It is not contended by the prosecution that the method of his entry, through clandestine, involved any deception, dishonesty or fraud. It must, however, have involved some anterior agreement between him and another person, if only with the master of the vessel which landed him. It was in respect of this agreement alone that he was charged. On 20th October 1969, he was arraigned at the Central Criminal Court on the following indictment:

'[The respondent] is charged with the following offence: --

STATEMENT OF OFFENCE

CONSPIRACY TO EVADE THE CONTROL ON IMMIGRATION IMPOSED UNDER THE COMMONWEALTH IMMIGRANTS ACT 1962.

PARTICULARS OF OFFENCE

'[The respondent] between the 1st day of January and the 23rd day of October 1967 within the jurisdiction of the Central Criminal Court conspired with other persons to evade the control on the immigration of Commonwealth citizens into the United Kingdom in order that he, being a Commonwealth citizen and subject to such control, mibht enter the United Kingdom without, upon landing, submitting himself for examination by an immigration officer and medical inspector and without holding an employment voucher.'

At the trial, though not until the conclusion of the prosecution's evidence, counsel for the respondent moved to quash the indictment on the ground that it did not disclose any offence known to the law. The presiding judge dismissed the motion; whereupon the respondent placed 'Guilty'. He appealed to the Court of Appeal n1 against the judge's refusal to quash the indictment. On 17th February 1970, his appeal was allowed and the indictment quashed. On the application of the prosecution, the Court of Appeal certified that a point of law of general public importance was involved in their decision, namely:

n1 [1970] 1 All ER 1129, [1970] 2 WLR 837

'Whether an indictment for conspiracy will lie against a Commonwealth immigrant who in combination with others entered the United Kingdom between 1962 and 1968 by evading examination by an immigration officer and a medical examination and without holding an employment voucher.' They refused leave to appeal, but this was later granted by your Lordships' House.

Prior to the passing of the Commonwealth Immigrants Act 1962, the respondent as a British subject had the right at common law to enter the United Kingdom without let or hindrance when and where he pleased and to remain here as long as he liked. That right he still retained in 1967 save insofar as it was restricted or qualified by the provisions of the Act. The only restriction which that Act imposed on his right to enter the United Kingdom is to be found in s 2. Subsection (1) provides:

'Subject to the following provisions of this section, an immigration officer may, on the examination under this Part of this Act of any Commonwealth citizen to whom section one of this Act applies who enters or seeks to enter the United Kingdom, -- (a) refuse him admission into the United Kingdom; or (b) admit him into the United Kingdom subject to a condition restricting the period for which he may remain there, with or without conditions for restricting his employment or occupation there.'

The subsequent subsections imposed limitations on the powers of immigration officers to refuse admission to or to impose restrictive conditions on various categories of Commonwealth immigrants. It is unnecessary to set them out, for it is not suggested that the respondent fell within any of these categories.

It is to be observed that there is nothing in this section which expressly limits the time or place at which a Commonwealth immigrant may enter the United Kingdom. This is in striking contrast with the only existing legislation which in 1962 was in pari material with the Act. That was the Aliens Order 1953 n2. Article 1 of that order provides:

n2 SI 1953 No 1671

'1. Restrictions on landing and embarkation. -- (1) Subject to the provisions of this Order, an alien shall not land or embark in the United Kindgdom except with the leave of an immigration officer, and shall not so land or embark elsewhere than at an approved port or at such other place as an immigration officer may in any particular case allow...

'(3) The Secretary of State shall by order designate the ports which are to be approved ports for the purposes of this Order; and any such order may specify in respect of any port so designated the limits of that port as an apporved port.'

It is also to be observed that an immigration officer's power to refuse admission to a Commonwealth immigrant was exercisable only on the examination of the immigrant under Part I of the Commonwealth Immigrants Act 1962. Examination was therefore all important. It was a condition procedent to any refusal of admission. Section 3 of the Act and Sch 1 dealt with examination. Section 3 (1) provides:

'The provisions of Part I of the First Schedule to this Act shall have effect with respect to --

'(a) the examination of persons landing or seeking to land in the United Kingdom from ships and aircraft;

'(b) the exercise by immigration officers of their powers of refusal of admission or admission subject to conditions under section two of this Act, and the cancellation, variation and duration of such refusals and conditions;

'(c) the removal from the United Kingdom of Commonwealth citizens to whom admission is refused under that section;

'(d) the detention of any such persons or citizens as aforesaid pending further examination or pending removal from the United Kingdom, and for other purposes supplementary to the foregoing provisions of this Act.'

The relevant paragraphs of Sch 1 dealing with examination provide:

'1. -- (1) Subject to the provisions of this paragraph, an immigration officer may examine any person who lands or seeks to land in the United Kingdom for the purpose of ascertaining whether that person is or is not a Commonwealth citizen subject to control under Part I of this Act, and if so for the purpose of determining what action, if any, should be taken in his case under the said Part I; and it shall be the duty of evert such person to furnish to an immigration officer such information in his possession as that officer may reasonably require for the purpose of his functions under this paragraph.

'(2) A person shall not be required to submit to examination under this paragraph after the expiration of the period of twenty-four hours from the time when he lands in the United Kingdom unless, upon being examined within that period, he is required in writing by an immigration officer to submit to further examination.'

It is to be observed, first, that an immigration officer's power to require a person to submit to examination is discretionary; secondly, that it must be exercised, if at all, within 24 hours after the person to be examined has landed in the United Kingdom; thirdly, that the power of examination is exercisable in respect of any person and is not restricted to Commonwealth immigrants; and fourthly, that no express obligation is imposed on any person landing in the United Kingdom to present himself to an immigration officer for examination unless required to do so by the officer himself.

By s 16(1) and (3) of the Act immigration officers are to be appointed by the Secretary of State and are to act in accordance with such directions as he may give them. The instructions current at the date when the respondent entered the United Kingdom are published as a Command Paper n3; but nothing turns on them in this appeal. Finally, the Act by s 4 creates a number of statutory offences which, by s 14, are punishable on summary conviction by fines up to @ 100 or imprisonment up to six months or both. Section 4 should be set out in full:

n3 Cmnd 3064

'4. -- (1) If any person being a Commonwealth citizen to whom section one of this Act applies --

'(a) enters or remains within the United Kingdom, otherwise than in accordance with the directions or under the authority of an immigration officer, while a refusal of admission under section two of this Act is in force in relation to him; or

'(b) contravenes or fails to comply with any condition imposed on him under that section or under Part II of the First Schedule to this Act, he shall be guilty of an offence; and any offence under this subsection, being an offence committed by entering or remaining in the United Kingdom, shall be deemed to continue throughout any period during which the offender is in the United Kingdom thereafter.

'(2) If any person knowingly harbours any person whom he knows or has reasonable grounds for believing to have committed an offence under subsection (1) of this section, being an offence committed by entering or remaining within the United Kingdom, he shall be guilty of an offence.

'(3) If any person --

'(a) makes or causes to be made to any immigration officer or other person lawfully acting in the execution of this Part of this Act, any return, statement or representation which he knows to be false or does not believe to be true; or

'(b) refuses or fails to produce or furnish to any such officer or person any document or information which he is required to produce or furnish to that officer or person under this Part of this Act, or otherwise obstructs any such officer or person in the exercise of his functions thereunder; or

'(c) without lawful authority, alters any voucher or other document issued or made under or for the purposes of this Part of this Act, or uses for the purposes of this Part of this Act, or has in his possession for such use, any forged or altered voucher, passport or other document, he shall be guilty of an offence.

'(4) If any person acts in contravention of, or fails to comply with, any provision of the First Schedule to this Act, or of any order made, directions given or requirement imposed thereunder (not being a requirement comprised in conditions so imposed), he shall be guilty of an offence.' It is to be observed, first, that it is an offence for a Commonwealth citizen to enter or remain within the United Kingdom only whilt a refusal of admission under s 2 of the Act is in force in relation to him, and not otherwise; and secondly, as conceded by the prosecution, that it is not an offence under sub-s (4) for any person to fail to submit himself to examination by an immigration officer unless he has been required by such an officer to do so.

That is why it is not contended by the Crown that the respondent's own acts in landing on a lonely beach and so avoiding any encounter with an immigration officer until after he had been in the United Kigndom for more than 24 hours involved the commission of any criminal offence. What is contended is that his agreement with other persons to do those acts was a criminal conspiracy at common law. The Crown put their submissions on criminal conspiracy in two ways. First, they say that although the Act imposes no criminal sanction on a Commonwealth immigrant for failing to present himself to an immigration officer for examination within 24 hours of landing in the United Kingdom, and contains no express provision requiring him to do so, it nevertheless by necessary implication imposes on him a duty so to present himself; and that an agreement between two or more persons to carry out the purpose of enabling one of them to commit a breach of that implied statutory duty is a criminal conspiracy at common law.

Alternatively, they say that even if, on the true construction of the Act, no such duty is to be implied, the purpose which the Act was intended to achieve would be frustrated unless Commonwealth immigrants on landing in the United Kingdom did present themselves to an immigration officer for examination within 24 hours; and that an agreement to carry out the purpose of enabling a Commonwealth immigrant who would be likely to be refused admission to avoid examination by an immigration officer within 24 hours of arrival, has a tendency to frustrate the purpose of the statute and for that reason is a criminal conspiracy at common law.

The Crown's first submission depends on one's being able to construe the Act as imposing by necessary implication a duty on Commonwealth citizens to whom the Act applies to present themselves to an immigration officer for examination within 24 hours of landing in the United Kingdom, and consequently, a duty not to land at any place where this would be impracticable. For may part, I can find no such implication in the Act.

I find some initial difficulty in the very concept of a statutory duty owed by the subject to the Crown which attracts no sanctions either penal or civil for its breach. A statutory duty, even of this peculiar kind, to present oneself for examination by an immigration officer on arrival in the United Kingdom is one which, if it is to be implied from the express provisions of the Act relating to examination, derogates from the historic liberties of every British subject. It cannot be limited to those Commonwealth citizens only to whom admission to the United Kingdom may be refused; for under para 1 of Sch 1 every person who lands or seeks to land in the United Kingdom is liable to be examined to ascertain whether he is or is not a Commonwealth citizen subject to control under the Act. At such examination he must on the demand of an immigration officer submit to interrogation and to search of his person and his beggage -- all of which he would at common law be entitled to refuse to do.

The express provisions of that paragraph give to an immigration officer the right to examine any person; they impose no duty on him to do so. They impose express duties on persons whom he in the exercise of his discretion chooses to examine. They impose none on any person whom he does not examine. The further duty which it is said is imposed by mere implication would involve an even graver derogation from the common law rights of British subjects, viz their right to enter the United Kingdom when and where they please and on arrival to go wherever they like within the realm. For since the Home Secretary has under the Act a discretion as to where immigration officers shall be stationed and the times when they shall be on duty, he could compel every British subject entering this country to make his way within 24 hours of his arrival to one or other of the places at which the Home Secretary had chosen to station an immigration officer, however few in number and however distant from his actual point of entry those places might be.

Mr Lords, the statement of these consequences compels the rejection of any implied duty on British subjects who are liable to be examined under the Act to present themselves to an immigration officer for examination without being required by him to do so. Even the Crown have resitated to claim that the implied duty is imposed on British subjects other than Commonwealth citizens to whom admission to the United Kingdom may be refused under s 2 of the Act. But if the duty is to be so confined, the implication cannot arise from those express provisions of the Act which provide for the examination of 'any person who lands or seeks to land in the United Kingdom'. It must arise, if at all, from some broader consideration of the purpose of the Act. The only legitimate way of ascertaining the purpose of the Act is by considering its language in the light of what the law was and of facts which were within the public knowledge at the time the Act was passed.

The purpose of Part I of the Act was described in the long title as being 'to make temporary provision for controlling the immigration into the United Kingdom of Commonwealth citizens' and by s 5 it was provided that Part I should expire on 31st December 1963, unless Parliament otherwise determined. The inference from this is that the method of control enacted was intended to be experimental. Parliament was to have an opportunity of seeing how it worked. The broad purpose of this Part of the Act as disclosed by ss 2 and 16(3) was to enable the Secretary of State to limit the numbers of Commonwealth immigrants entering this country who did not possess one or other of the qualifications specified in s 2. These appear to be based on either humanitarian or economic grounds. It was general public knowledge in 1962 that the problem was one of numbers.

In 1962, the relevant distinction between Commonwealth citizens and aliens as respects entry to the United Kingom was that all Commonwealth citizens could but aliens could not enter the United Kingdom without anyone's leave at whatever place they chose. If it had been desired in either of these respects to assimilate Commonwealth citizens, to whom the Act applied, to aliens the legislative precedent was ready to the draftsman's hands in art 1 of the Aliens Order 1953, which I have previously cited. Parliament's failure to follow that precedent strongly suggests a legislative intention that Commonwealth citizens, even though liable to exclusion from the United Kingdom, should be subject to a less rigorous control on their entry than that which in 1953 was imposed on aliens. The initiative was placed on the Home Secretary to place immigration officers where they would meet Commonwealth citizens arriving in the United Kingdom and not on Commonwealth citizens to seek out an immigration officer for themselves. A further indication of this intention is to be found in para 8 (2) (b) of Sch 1 which provides that a member of a crew of a ship who --

'remains in the United Kingdom after his ship has left the port and without having been examined by an immigration officer under paragraph 1 of this Schedule'

shall be treated as if he had been refused admission into the United Kingdom.

An analogous provision is applied to stowaways by para 9. There is no such provision as respects Commonwealth citizens who enter the United Kingdom otherwise than as members of the crew of a vessel or as stowaways on ships or aircraft. They are free to remain if they have not been examined by an immigration officer within 24 hours of arrival.

My Lords, in the face of what the Act states and, even more significantly, what it omits to state, it would, in my view, be quite unjustifiable to attribute to Parliament so devious an intention to impose by implication on Commonwealth citizens a duty in derogation of their common law rights as British subjects which it did not put into express words. A more rational and more creditable explanation of the absence of any provision in the Act requiring Commonwealth citizens to seek out an immigration officer and to present themselves for examination by him is that the problem being one of limiting the numbers of Commonwealth immigrants, Parliament considered that its purpose could be sufficiently achieved by leaving it to the initiative of the Home Secretary to place immigration officers at the places of entry to the United Kingdom at which the great majority of Commonwealth citizens might be expected to arrive in the United Kingdom. If that expectation were not to be fulfilled Parliament would have the opportunity of reconsidering the problem and of changing the method of control when the Act was due to expire on 31st December 1963.

I reject, therefore, the premise on which the Crown's first submission was founded -- that there was any duty on the respondent to seek out an immigration officer on his arrival in the United Kingdom and to present himself for examination. There remains, however, the alternative submission, which is not dependent on that premise, that the agreement between the respondent and the master and others concerned in enabling him to be landed on a deserted beach tended to frustrate the purpose of the Act and for this reason was a criminal conspiracy at common law.

My Lords, the disposition of the instant appeal does not, in my opinion, call for a general survey of the current role of criminal conspiracy in the common law. The least systematic, the most irrational branch of English penal law it still rests on the legal fiction that the offence lies not in the overt acts themselves which are injurious to the common weal but in an inferred anterior agreement to commit them. Your Lordships should not be zealous to use this legal fiction to create new offences of acts not previously recognised as criminal at common law which Parliament itself in intervening to change the common law has not expressly penalised. In the instant appeal we are not concerned with any acts which if done by a single person would have been 'unlawful' as constituting either a criminal offence or a civil wrong. We are concerned only with that part of the law of criminal conspiracy which deals with concerted action by more than one person to achieve a purpose contrary to public policy by acts which do not in themselves amount to either a crime or a tort on the part of the person who does them. They take their criminal colour solely from the common purpose they are calculated to achieve.

In past centuries the courts, as expositors of those parts of the common law of England in which Parliament had not yet chosen to intervene, had laid down a number of broadly described categories of purposes which they deemed socially injurious and had determined what were the legal consequences of agreements to achieve them. Those consequences varied with the view which the courts then took of the gravity of the social injury which would be involved if the purpose were achieved. Some purposes attracted no severer consequence than that the agreement to achieve them was void in civil law; but others, where the social injury was thought to be greater or other means of preventing it inadequate, attracted the penal consequences attaching to a misdemeanour at common law.

In Shaw v Director of Public Prosecutions n4 when this branch of the law of criminal conspiracy was last considered in your Lordships' House, I do not understand any of the speeches as asserting that it is still open to the courts to enlarge the number of categories of purposes which are so contrary to public policy that those who act in concert to achieve them are guilty of a criminal offence at common law. The matters debated were whether or not it was established by previous decisions of the courts that to corrupt public morals was such a pupose and, if so, how wide was its scope. It was held by a majority of your Lordships' House to be established on the authorities that acting in concert for the purpose of corrupting public morals by encouraging prostitution was prohibited and punishable at common law and nonetheless so because the particular means adopted to achieve that purpose were novel. The offence, it was held, lay in a field in which Parliament had not yet intervened to supersede the common law. Accordingly, it still survived as part of the law of England. But what your Lordships are invited to do in the present case is the very antithesis of what was done in Shaw's case n4. Before the passing of the Commonwealth Immigrants Act 1962, so far from its being contrary to public policy for a British subject, such as the respondent, to enter the United Kingdom without notice to any public officer or obtaining his consent, it was a right assured to him by common law, and any contract which he made with another person to enable him to do so, so far from being a criminal conspiracy, would have been enforceable by the courts at common law.

Parliament in 1962 chose to intervene to qualify this common law right of the respondent to the limited extent I have already indicated. It imposed on him specific obligations in derogation of his common law rights of entry and enacted statutory penalties for breach of those specific obligations. Of none of these statutory obligations was the respondent in breach. Furthermore, he cheated no one, he defrauded no one, he deceived no one in the course of gaining entry as he did. All that can be said against him and those who aided him is that, if a sufficient number of Commonwealth citizens adopted a similar method of entry, the system of control of entry of Commonwealth citizens provided by the Commonwealth Immigrants Act 1962, would fail to achieve that I am prepared to assume was the purpose that Parliament hoped and expected that it would achieve, viz of reducing the numbers of Commonwealth immigrants to this country and giving priority of admission to those thought to be most deserving for economic or humanitarian reasons.

My Lords, I know of no authority which would justify your Lordships in holding it to be a criminal offence for any person, whether or not acting in concert with others, to do acts which are neither prohibited by Act of Parliament nor at common law, and do not involve dishonesty or fraud or deception, merely because the object which Parliament hoped to achieve by the Act may be thereby thwarted. There are, however, some passages in the judgment of the Court of Criminal Appeal in R v Newland n5 which at any rate as summarised in the headnote go further than was necessary for the decision in that case and, unless read in the context of its particular facts, in my view misstate the law. The accused were charged with conspiring 'by fraudulent means to obtain and by dishonest devices to distribute to the home market, for eventual retail sale within the United Kingdom' certain classes of domestic pottery which manufacturers and wholesalers were prohibited by an order under the Defence (General) Regulations 1936 n6 from supplying except for export. Under these regulations penalties were imposed on manufacturers and wholesalers who supplied that class of domestic pottery othewise than for export but no penalty was imposed on persons to whom it was supplied in contravention of the order. The accused had obtained the prohibited goods from manufacturers and wholesalers by falsely representing that they required them for export and disposed of them to retailers on the home market by means of bogus documents and false invoices. Their purpose was an unlaewful purpose, viz of thereby inducing the manufacturers and wholesalers to contravene the provisions of the order, and the means adopted to achieve that purpose were fraudulent. In the course of the judgment of the court Lord Goddard CJ said n7:

n5 [1953] 2 All ER 1067, [1954] 1 QB 158

n6 SR & O 1939 No 927

n7 [1953] 2 All ER at 1072, [1954] 1 QB at 166

'... whether the matter is looked at simply as a conspiracy to effect an unlawful purpose or a conspiracty by dishonest devices to defeat the clear intention and purpose of an Act of Parliament or to work to the prejudice of the State, in our opinion, they disclose offences which have been known to the common law of this country.'

My Lords, as far as these words refer to a conspiracy to effect an unlawful purpose they are unexceptionable. But the latter part of the statement is ambiguous in that it does not make it clear whether the use of dishonest devices, such as featured in Newland's n5 case itself, is an essential characteristic of a criminal conspiracy to work to the prejudice of the State as well as of a criminal conspiracy to defeat the intention of an Act of Parliament. In the form in which the statement is transcribed in the headnote this qualification does not apply to conspiracies to work to the prejudice of the State.

n5 [1953] 2 All ER 1067, [1954] 1 QB 158

The actual decision in Re Yeoland's Consols, Manley's Case n8 is no authority for the proposition that it can be a criminal conspiracy to defeat the intention of an Act of Parliament by using means which are neither prohibited by the Act itself nor criminal or tortious at common law. Nor should the decision be treated as authority for the proposition that it is an offence at common law to agree to 'act to the prejudice of the State' unless the means adopted are unlawful or the prejudice likely to be caused falls within one of the established categories of public mischief which have been held by previous decisions of the courts to be so contrary to public policy as to justify the imposition of penal sanctions. The public policy disclosed by an Act of Parliament, which derogates from the freedoms previously enjoyed by citizens of this country under the common law, cannot fall within any of these established categories, for ex hypothesi it is a new policy.

n8 (1890) 2 Meg 74

Under our system of Parliamentary government what Parliament enacts are not policies but means for giving effect to policies. Those means often involve imposing on private citizens fresh obligations or restrictions on their liberties to which they were not previously subject at common law. The constitutional function of the courts in relation to enacted law is limited to interpreting and applying it. It is the duty of the juge to ascertain what are the means which Parliament has enacted by the Act. In construing the enacting words he may take account of what the Act discloses as the purpose that those means were intended to achieve and, in the case of ambiguity alone, he may interpret them in the sence in which they are more likely to promote than hinder its achievement. But it is no function of a judge to add to the means which Parliament has enacted in derogation of rights which citizens previously enjoyed at common law, because he thinks that the particular case in which he has to apply the Act demonstrates that those means are not adequate to achieve what he conceives to be the policy of the Act.

To do so is not to carry out the intention of Parliament but to usurp its functions. The choice of means is itself part of the Parliamentary choci of policy. It represents the price, by way of deprivation of freedom to do or not to do as they wish, which Parliament is prepared to exact from indivual citizens, to promote those objects to which the Act is directed. To raise the price is to change the policy -- not to give effect to it. If the policy is to be changed it is for Parliament not the courts to change it -- as Parliament has in fact changed the policy of the Commonwealth Immigrants Act 1962, by the amending Act of 1968 which makes it an offence for Commonwealth citizens to do that the respondent did in 1967. This is what Parliament has also done in numerous Finance Acts which have followed on decisions of your Lordships' House in cases which have brought to light inadequacies in the enacted means of raising public revenue. In each of those cases the method adopted by the taxpayer of avoiding the incidence of taxation involved concerted action with at least one other person, and the decisions of your Lordships' House in them are irreconcilable with the proposition for which the prosecution contends in the instant appeal.

My Lords, that proposition is not supported by the authority of any previous decision of the courts. It is no offence under the law of England to do or to agree with others to do acts which, though not prohibited by legislation nor criminal nor tortious at common law, are considered by a judge or by a jury to be calculated to defeat, frustrate or evade the purpose or intention of an Act of Parliament. If it were otherwise, freedom under the law would be but an empty phrase.

I would dismiss this appeal

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Director of Public Prosecutions; Norman E Bell & Co (for the respondent).