Director of Public Prosecution v Withers: HL 20 Nov 1974

The House was asked to consider whether there existed the crime of a conspiracy to commit a public mischief.
Held: There was no such crime, since it was so undefined as to be unfair to any defendant. Although at common law no clear distinction was originally drawn between conspiracies to ‘cheat’ and conspiracies to ‘defraud ‘, these terms being frequently used in combination, by the early years of the nineteenth century ‘conspiracy to defraud’ had become a distinct species of criminal agreement independent of the old common law substantive offence of ‘cheating’. The abolition of this substantive common law offence by section 31(l)(a) of the Theft Act, 1968, except as regards offences relating to the public revenue, thus leaves surviving and intact the common law offence of conspiracy to defraud.
Where the intended victim of a ‘conspiracy to defraud’ is a private individual the purpose of the conspirators must be to cause the victim economic loss by depriving him of some property or right, corporeal or incorporeal, to which he is or would or might become entitled. The intended means by which the purpose is to be achieved must be dishonest. They need not involve fraudulent misrepresentation such as is needed to constitute the civil tort of deceit. Dishonesty of any kind is enough.
Where the intended victim of a ‘conspiracy to defraud’ is a person performing public duties as distinct from a private individual it is sufficient if the purpose is to cause him to act contrary to his public duty, and the intended means of achieving this purpose are dishonest. The purpose need not involve causing economic loss to anyone.
Viscount Dilhorne said: ‘The preferment of charges alleging public mischief appears to have become far more frequent in recent years. Why this is, I do not know. It may be that it is due to a feeling that the conduct of the accused has been so heinous that it ought to be dealt with as criminal and that the best way of bringing it within the criminal sphere is to allege public mischief and trust that the courts will fill the gap, if gap there be, in the law. But if gap there be, it must be left to the legislature to fill.
I hope that in future such a vague expression as ‘public mischief’ will not be included in criminal charges. It introduces a wide measure of uncertainty and should not be a vehicle for the enlargement of the criminal law or a device to secure its extension to cover acts not previously thought to be criminal.’ Judges have no power to create new offences.’
Lord Simon of Glaisdale said: ‘To be punishable as conduct tending to pervert the course of justice, the conduct must be such as can be properly and seriously so described. ‘Pervert’ is a strong word (cf. ‘corrupt’ and ‘outrage’ as explained in Knuller (1973) AC 435).’

Viscount Dilhorne, Lord Reid, Lord Simon of Glaisdale, Lord Kilbrandon
[1975] AC 842
England and Wales
CitedRegina v Knuller (Publishing, Printing and Promotions) Ltd; Knuller etc v Director of Public Prosecutions HL 1972
The defendants were charged after pasting up in telephone booths advertisements for homosexual services. They published a magazine with similar advertisements. The House was asked to confirm the existence of an offence of outraging public decency. . .

Cited by:
CitedGoldstein, Rimmington v Regina CACD 28-Nov-2003
Two defendants appealed in respect of alleged offences under common law of causing a public nuisance. One had sent race hatred material, and the other bomb hoaxes, through the post. Both claimed that the offence was so ill defined as to be an . .
CitedRegina v Rimmington; Regina v Goldstein HL 21-Jul-2005
Common Law – Public Nuisance – Extent
The House considered the elements of the common law offence of public nuisance. One defendant faced accusations of having sent racially offensive materials to individuals. The second was accused of sending an envelope including salt to a friend as a . .
CitedScott v Metropolitan Police Commissioner; Regina v Scott HL 20-Nov-1974
The defendant had been accused of conspiracy to produce pirate copies of films obtained by purchasing copies from cinema owners without the knowledge or consent of the copyright owners.
Held: To establish a conspiracy to defraud, it was not . .
CitedRegina v Cotter and Others CACD 10-May-2002
The defendants appealed against convictions for conspiracy to pervert the course of justice. They said that the fact that an investigation followed a false allegation was insufficient to found a complaint, and that the extent of the crime was so . .
CitedThe Director of Public Prosecutions v SK Admn 10-Feb-2016
The prosecutor appealed against dismissal of a charge of conspiracy to pervert the course of justice. The defendant had completed somebody else’s community service sentence. The prosecutor said that such an act did affect something ‘in the course of . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 01 November 2021; Ref: scu.188881