REX v. WHITAKER. 1914. Conspiracy Bribery Liability of officer in regiment demeanour at as the reign of William III. The maintaining or keeping of a standard army in time of peace was declared by the Bill of Rights to be against law, and that declaration precedes every Mutiny Act and Army Act down to the present time. At common law therefore the maintenance of a standing army was impossible and illegal, and a military officer was not an officer of the class at any time contemplated by the common law. It is not said that if a new office was created the principles of the common law command of could not be applied; but, speaking broadly, Coke, Littleton, and Public and the ancient authorities of the law do not recognise the common ministerial law offence of bribery except in the case of judicial personages. officer-Mis- There are later cases where certain officers of customs, who had common law taken bribes, have been held punishable at common law, but until Prevention of the present case no one has ever laid down the proposition, Corruption which Stephen, J. has negatived, that a military officer is a (6 Edw. 7, c. public officer within the contemplation of the common law. The way in which the military law dealt with the matter was by providing that every offence by a person subject to military law had to be prosecuted within three years from the time the offence was committed. The appellant's defence was, that under the King's regulations he was entitled, in certain circumstances, to act as an agent; and the fact that the offence with which he was charged was punishable under the King's Regulations (if proceedings had been taken in time) is a strong argument to show that the offence could not be dealt with at common law. With reference to the phrase "public and ministerial officer," used in the indictment, the only place where an authority can be found for the present charge is in Mr. Justice Stephen's Digest of Criminal Law (5th edit.). In chapter 13 art. 137 says: Act, 1906 34), 8. 1 (1). Everyone commits a mi-demeanour who by any means endeavours to force, persuade, or induce any public officer, not being a judicial officer, to do or omit to do any act which the offender knows to be a violation of such officer's official duty. There is no corresponding section declaring it a crime on the part of the officer to do the act or accept the bribe. [LUSH, J. Is it said every officer, commissioned or non-commissioned, is a public and ministerial officer?] The Crown must go as far as that, and if so it is difficult to see why a private soldier is not in that position, and the Crown must go the length of saying that when a private soldier is on service in the Colonies or in India he still remains a public and ministerial officer for the purposes of a case like the present. It may fairly be said that any person in the service of what may be called the public might be held to be within some of the limitations laid down by Stephen, J. But a soldier is not in the service of the public; he is the direct personal servant of the King; he is not a public or ministerial officer. He exists for the purpose of repelling invasion and maintaining order in some cases where called in by the civil power. It might be that for the moment, while exercising functions of the civil power, he might become a public or even a ministerial officer, but the duty of repelling invasion REX บ. WHITAKER. 1914. Conspiracy officer in command of regiment and the right of declaring war is vested in the Crown. It is remarkable that Lord Halsbury in his Laws of England does not use the phrase "public officer" at all; he uses the phrase "ministerial" officer. Stephen, J. does not use the phrase "ministerial" officer, but "public" officer. The indictment in the present case is rather more than a blend, it is copu- Briberylative "public and ministerial officer." The use of the word Liability of "ministerial" is no doubt, as has been pointed out, to distinguish it from political or judicial, but the officer in question must owe a duty to the public, and the public must have the power of Public and resorting to him. The public has no resort to the soldier unless ministerial the civil power calls him in, and the contention here is that he officer-Misis not within the purview of the common law, and the offence common lawcharged must be dealt with as a military offence. The case of Prevention of judicial corruption is different, and the following references Corruption show that the older authorities confine bribery either to judicial officers or to the sale of offices: Coke, 3rd Institutes, ch. 68, pp. 145-147; 1 Hawkins' Pleas of the Crown, 8th edit., 414; 1 Hale's Pleas of the Crown, 262. Assuming for the purpose of further argument that the indictment was a good one, the contention is that there was no legal evidence to support it. The foundation of the charge of conspiracy in the case is the letter of October, 1905, from Ness and Minto which has been already read. And it is urged on behalf of the appellant that that letter was improperly admitted and could not be evidence against him. There must be proof of the existence of a conspiracy before evidence of any statements or acts done in furtherance of a conspiracy by co-conspirators can be admitted. Reference may be made to the proposition in Mr. Justice Stephen's Digest of the Law of Evidence (5th edit.) at p. 6. In the present case evidence was admitted of a general system of corruption amongst non-commissioned officers, and the witness giving his evidence was then allowed to produce the letter referred to. The jury should have been told that until they were satisfied that the charge of conspiracy had been proved the letter was not evidence against the appellant. The law of evidence is the same in all civil and criminal cases, except perhaps in a case of treason, or compassing the death of the King, and so on; and it is submitted that until ground has been laid by reason of the conspiracy here, the letter referred to does not become evidence. With regard to the summing up of the learned judge at the trial, it should have been pointed out to the jury that the rebate given to the regiment of the appellant, when in Malta, was equal to that of any of the other five regiments. there, and when at Sheffield the rebate given exceeded the rebate of any other regiment. The learned judge also assumed that, because the indictment imported the statute of 1906, the statute applied, and it is submitted that the statute has no bearing on the case. The jury should have been warned that the statute did not apply because the acts complained of were demeanour at (6 Edw. 7, c. 34), 8. 1 (1). Act, 1906 REX v. WHITAKER. 1914. Conspiracy- officer in command of regiment demeanour at Act, 1906 (6 Edw. 7, c. 34), s. 1 (1). committed before the statute came into force. With regard to the letter, exhibit 8, already referred to, a passage in the summing up shows that the letter was treated as evidence of the payment of 150l. as against the appellant, which, it is submitted, was misleading. The Attorney-General (Sir John Simon, K.C.), R. D. Muir, Travers Humphreys, and G. A. H. Branson for the Crown.-The main contentions put forward on behalf of the appellant are apparently four; first, that at common law there is no such Public and criminal offence as bribing an officer in the King's Army; ministerial secondly, that there is no such criminal offence at common law officer-Misas receiving a bribe, you being an officer in the King's Army; common law thirdly, that there is in this case no evidence of conspiracy Prevention of and in fact no evidence against the appellant Whitaker; and, Corruption fourthly, objection is taken to the admission of a certain piece of evidence. With reference to the first point, the question whether there is or is not at common law such a crime as paying a bribe corruptly to an officer in the King's Army. It must be remembered that the common law is adjustable; it is not like a code, drawn up in advance by a series of learned persons, within the four corners of which you must get literally and precisely, or you necessarily fall outside all possibility of punishment. The common law proceeds on principles which are familiar, and so far from the common law having ceased to develop since the time of Richard II. it is always developing. Now what is the principle here? A "public officer" means a person who has to discharge a public duty; that is the significance of the word "public." A domestic servant may have and no doubt has a duty, but it is not a public duty, it is the result of contract. The word "officer" is derived from the Latin equivalent to the word "duty." For convenience text-writers and other authorities have made a further subdivision; they have said that some public officers discharge judicial duties, and they sometimes call these judicial officers, but that is merely a convenient classification. If this had been the case of an accusation of attempting to bribe a judge the indictment would have been perfectly good though it never contained the word "judicial." The principle is that it is an offence at common law to bribe a public officer provided that what you are trying to do is to corrupt him in respect of the discharge of the duty which he owes to the public. That is the only reason why in digests a certain exception is sometimes made in the case of naval, ecclesiastical, and military persons. A soldier has public duties to discharge; an officer or a soldier is for this purpose the same thing, but over and above the duties he owes to the public, and for the breach of which he may in a proper case be prosecuted in a criminal court, there are offences for which he can be tried by court-martial, although they are offences against the criminal law. It is a mistake to suppose that under our constitution the military law is concerned entirely with offences which are no offence against the common REX v. WHITAKER. 1914. officer in demeanour at Prevention of Act, 1906 law. Equally it is a mistake to suppose that the military law is a code, every article of which is also covered by common law. The two things overlap every soldier is amenable in a criminal court and in a court-martial for wrongs of which stealing is an obvious example, but you also find in the criminal code some Conspiracyoffences which a man can only be said to commit because he is a Briberysoldier, and some offences for which he can only be punished by Liability of court-martial. The same thing is true with regard to the Navy, and in certain ecclesiastical cases, which are only recognised command of regiment in an ecclesiastical court, offences can only be committed by Public and clergymen, and, if not punished in that court, cannot be punished ministerial at all. Equally there are ecclesiastical offences punishable at officer-Mixcommon law. Keeping that distinction in mind one has to be careful to say that the Criminal Courts have nothing to do with bribing a public officer so long as the only thing he has been asked to do is a breach of his naval, ecclesiastical, or military duty as distinguished from something which is a breach of his duty to the public. The moment you ask him to do something which is a breach of the common law-it matters not in the least that he might be punished for it in court-martial—if he is a public officer who owes a duty to the public, and money is given not to discharge that duty to the public, that is a common law offence. There is nothing whatever to justify the view that there is no common law offence known of bribing a military, naval, or ecclesiastical officer. The test is whether or not the breach of duty which you endeavoured to induce him to succumb to is a breach of the duty which lies upon him not merely because of some military regulations or the like, but because it is part of the duty which he discharges in view of his office to the public. Reference may be made to the considered judgment of Best, C.J. in the case of Henley v. Mayor of Lyme (5 Bing. 91, at p. 107). [ATKIN, J.-Do you not put the duty a little narrowly? In the case of a person who is bribed to commit a breach of duty imposed by a military regulation there might still be bribery offered to him to commit a violation of his duty to the public. A public servant's duties may be fixed by special regulations. The test cannot be quite that; the test is not whether the duty is imposed by a military regulation, but whether he is not liable for the penalties in respect of the breach of any military law, the punishment for which belongs properly to some other tribunal.] The suggestion is accepted. Because you find the definition of a man's duties in, it may be, military regulations, it does not follow that the discharge of those duties is not a discharge of a duty to the public. The position is, it is submitted, that if you take the case of a soldier or a public officer he is paid by public money to discharge a duty, and a most sacred duty to the public on behalf of the public; his very existence as a member of the army depends on a public Act; Parliament every year has to vote how many officers and men there shall be in the army. It is the essential basis upon which REX v. WHITAKER. 1914. Conspiracy- Liability of command of regiment demeanour at Act, 1906 (6 Edw. 7, c. 34), s. 1 (1). the existence of the army depends. Parliament has every year to pass the Annual Army Act, which authorises the existence of a standing army in the time of peace in the United Kingdom. Looked at from that point of view the soldier and officer is about as obvious an example of a man performing a public duty as can be conceived, and every soldier comes within the principle. It cannot be doubted that the members of the armed forces of the Crown are invested with authority to execute, and are legally bound to execute public duties; it can hardly be said Public and that if a policeman is a public officer a soldier is not. Everyministerial body who is a public officer is ministerial if he is not judicial. officer-Mis- "Ministerial" in this case means "non-judicial"—and this view common law is supported by the following authorities: Pollock on Torts (9th Prevention of edit., chap. 4, p. 123); Vaughan's case (4 Burr., 2494, at p. Corruption 2500), Rex v. Gibbs (1 East. 183, citing Rex v. Beale), Reg. v. Lancaster and Worrall (16 Cox C. C. 737). The real test is whether the duty is a duty arising from contract or whether it is. a public duty. The court will remember that Darling, J. at the trial dealt in an exhaustive way with the phrase "public and ministerial officer" and inclined to the view that it might be a misdescription to use the phrase "ministerial officer," but that it would be an offence to bribe an officer if he is a public officer, whether he is "ministerial" or not. The submission here is that a person in the armed forces of the Crown is not only a public officer but is a ministerial officer, too, for the simple reason that he is not a judicial officer. But however that may be the learned judge took the view that it would not make any difference. So that on this question the argument really comes down to three points: first, that a commissioned officer in the army such as the appellant is a public ministerial officer; secondly, that in accor dance with the view of the learned judge the word "ministerial" may be dropped out and the appellant remains a public officer; and, thirdly, the fact that the appellant could not lawfully discharge his functions unless there was an Act of Parliament passed year by year authorising a standing army, is no reason why it should not be a common law offence to try to bribe him. On this part of the case a good example occurs in the case of Corporation of Salford v. Lever (62 L. T. Rep. 434; (1891) 1 Q. B. 168). The actual facts of the present case which were given in evidence show that the appellant had a duty to discharge in his official capacity as the commanding officer of his regiment. The duty upon the commanding officer is a duty upon him, because he holds that office and he has the duty put upon him by the War Office to administer sums of money which the public must pay under the law to the soldiers. The submission is that if what he does is done under the army regulations, which are as much part of the law as the Army Act itself, the appellant is discharging a public duty. He is a trustee under a trust imposed by the law. With regard to the question of conspiracy there is authority for saying that there may be a criminal |