Report No. 33

Appendix 1

English Law as to Misprision of Treason and Felony

(a) Position at common law.- Section 44 of the Code of Criminal Procedure, 1898, corresponds to the offence of "misprision of treason" and "misprision of felony" known to English law. The gist of the offence (at common law) is concealment of a treason or felony. The former is punishable with imprisonment for life and forfeiture; the latter with imprisonment and fine1. The offence was discussed in detail in a recent decision of the House of Lords2.

At common law misprision of felony is now employed (in connection with treason and felony) to denote the position when a person who knows that a treason or felony has been committed and is in possession of information which leads to the apprehension of the offender, omits to communicate that information to some appropriate police authorities, and thus to discharge the duty resting upon all citizens to maintain the law of the land3.

It may be noted, that bribery is not a felony, but a misdemeanour, at common law4-5

1. Kenny Criminal Law, (1962), pp. 392-393.

2. Sykes v. D.P.P., (1961) 3 WLR 371: (1962) AC 528: (1961) 3 ER 33 (HL), affirming (1961) 1 All ER 702.

3. Russell on Crime, (1964), Vol. 1, p. 167.

4. Kenny Criminal Law, (1962), p. 364, para. 371.

5. Russell on Crime, (1964), Vol. 1, p.381.

(b) History.-About the history of the offence1, Stephen has stated as follows:-

"In concluding this account of our own law, I may just mention the practically obsolete offence of misprision which meant concealment of either treason or felony without otherwise taking part in it. On this I have only to refer to Articles 156 and 157 of my Digest. I may add to what is there said that the commonest form of misprision of felony was forbearing to prosecute in consideration of the return of stolen goods, which was anciently called theftbote."

For further details of the history of the offence, the undermentioned Articles may be seen2-3

Before 1961, there was some authority in England for extending the scope of this offence to include the case of one who knew that a treason or a felony was planned, but not carried out4. In a House of Lords case decided in 19615, no final opinion was expressed on this point.

In a case6 decided after Sykes, the question, whether misprision might be committed by a passive concealment has been discussed7 But the facts of the case were peculiar, as the matter was put in the trial court on the basis of "passive concealment", while it was argued in appeal on the basis of active concealment.

1. Stephen History of Criminal Law of England, (1883), Vol. 2, p.238.

2. Glazebrook How long then us the arm of the Law to be, (1962) 25 MLR 301.

3. Glazebrook Misprision of felony-shadow or phantom, (1964), American Journal of Legal History, p. 283.

4. Russell on Crime, (1964), Vol. 1, p. 168.

5. Sykes v. D.P.P., (1961) 3 AER 33: (1961) 3 WLR 371 (386): 1962 AC 528 (HL).

6. Reg. v. King (Joseph), (1965) 1 WLR 706 (709) (CCA).

7. For comment (see 1966 Jan) 82 LQR 24.

(c) Essential ingredients.-The essential ingredients of the offence were thus analysed in Sykes1:-

'This review of the authorities shows that the essential ingredients of misprision of felony are:-

"1. Knowledge.-The accused man must know that a felony has been committed by someone else. His knowledge must be proved in the way in which the prosecution have been accustomed in other crimes when knowledge is an ingredient, such as receiving, accessory after the fact, compounding a felony, and so forth. That is to say, there must be evidence that a reasonable man in his place, with such facts and information before him as the accused had, would have known that a felony had been committed. From such evidence the jury may infer that the accused man himself had knowledge of it.

He need not know the difference between felony and misdemeanour-many a lawyer has to look in the books for the purpose-but he must at least know that a serious offence has been committed; or, as the Commissioners of 1840 put it, an offence of an "aggravated complexion": for after all, that is still, broadly speaking, the difference between a felony and misdemeanour. Felonies are the serious offences. Misdemeanours are the less serious. If he knows that a serious offence has been committed-and a lawyer on turning up the books sees it is a felony-that will suffice.

This requirement that it must be a serious offence disposes of many of the supposed absurdities, such as boys stealing apples, which many lawmen would rank as a misdemeanour and no one would think he was bound to report to the police. It means that misprision comprehends an offence which is of so serious a character that an ordinary law-abiding citizen would realise he ought to report it to the police.

2. Concealment.- The accused man must have "concealed" or "kept secret" his knowledge. He need not have done anything active: but it is his duty by law to disclose to proper authority all material facts known to him, relative to the offence. It is not sufficient to tell the police that a felony has been committed. He must tell the name of the man who did it, if he knows it; and so forth. All material facts known to him, see Reg. v. Crimmins, 1959 VLR 270. If he fails or refuses to perform this duty when there is a reasonable opportunity available to him to do so, then he is guilty of misprision. He can perform this duty by reporting to the police or a magistrate or anyone else in lawful authority. Failure to do so is a misprision of felony.

Misprision of felony is itself a misdemeanour and is punishable by fine and imprisonment. Whatever limitations may have existed in olden days on the period of imprisonment that might be imposed, the only limitation now is that it must not be an inordinately heavy sentence.

My Lords, it was said that this offence is out of date. I do not think so. The arm of the law would be too short if it was powerless to reach those who are "contact" men for thieves or assist them to gather in the fruits of their crime; or those who indulge in gang warfare and refuse to help in its suppression. There is no other offence of which such persons are guilty save that of misprision of felony. I am not dismayed by the suggestion that the offence of misprision is impossibly wide; for I think it is subject to just limitations. Non-disclosure may be due to a claim or right made in good faith.

For instance, if a lawyer is told by his client that he has committed a felony, it would be no misprision in the lawyer not to report it to the police, for he might in good faith claim that he was under a duty to keep it confidential. Likewise with doctor and patient, and clergyman and parishioner. There are other relationships which may give rise to a claim in good faith that it is in the public interest not to disclose it. For instance, if an employer discovers that his servant has been stealing from the till, he might well be justified in giving him another chance rather than reporting him to the police. Likewise with the master of college and a student.

But close family or personalities will not suffice where the offence is of so serious a character that it ought to be reported. In 1315 it was held that it was the duty of a brother to raise hue and cry against his own brother and he was fined for not doing so2, and in 1938 a mistress was found guilty of misprision for shielding her lover3. The judges have not been called upon further to define the just limitations to misprision, but I do not doubt their ability to do so, if called upon. "My Lords, there was some discussion before us whether a man was bound to disclose a contemplated felony which comes to his knowledge, such as a planned raid on a bank.

There is a striking passage in Lambard's Eirenarcha4, which says that failure to do so is misprision of felony. So does Dalton's Country Justice5, and Hawkins' Pleas of the Crown6, which are weighty authorities and the commissioners who reported on the Criminal Law in 1943 were clearly in favour of it. They said: The necessity for "making such disclosures extends, perhaps, with greater force, to the knowledge of a meditated crime the perpetration of which may, by means of such a disclosure, be prevented, than it does to the knowledge of one already committed". This is good sense and may well be good law. I would therefore reserve this point which does not arise in the present case." '

1. Sykes v. D.P.P., (1961) 3 WLR 371 (385-387): (1961) 3 All ER 33 (41, 42): (1962) AC 528 (HL).

2. See 24 Selden Society, pp. 144-145.

3. Casserley's case, The Times, May 28, 1938.

4. Lambard's Eirenarcha, (1614), p. 289.

5. Dalton's Country Justice, (1619), p. 211.

6. Howkins' Pleas of the Crown, 8th Edn., Vol 2, Ch. 29, section 23, p. 444.

(d) Criminal Law Revision Committee.- The Criminal Law Revision Committee made this recommendation1:-

"37. Misprision of felony consists of concealing or procuring the concealment of a felony known to have been committed. The offence was of doubtful existence before Aberg2, where a woman who harboured an escaped prisoner was successfully prosecuted for misprision of his felony in escaping from prison as well as for being accessory after the fact to that felony. The Court of Criminal Appeal suggested in that case that the law as to misprision might require further consideration. In Sykes v. D.P.P., 1962 AC 528: 45 Cr App R 230., the House of Lords rejected a submission that the offence no longer existed.

In King3, the Court of Criminal Appeal held that, although the offence did not extend to a mere failure by a person who had himself committed felony to disclose the felony when being questioned by the police, active concealment, as by telling a lie in order to put the police off the track, could amount to misprision. From the speeches in Sykes's case it appears that there may be some limitations as regards offences committed by relatives, but the matter is not clear. The offence is a common law misdemeanour punishable with imprisonment.

Although ordinarily there is no limit to the term of imprisonment which may be imposed for a common law misdemeanour, the Court of Criminal Appeal said in Sykes' case 4, that it would be impossible to pass a sentence of more than two years' imprisonment for misprision of larceny because that was the maximum for the more serious offence of being accessory after the fact and because under section 29(1) of the Sheriffs Act, 1887 (c. 55) the maximum punishment for a sheriff or sheriff's officer for concealing a felon was one year's imprisonment. There is no offence of misprision of misdemeanour.

38. The offence of compounding a felony is an agreement not to prosecute a felon in consideration of the return of the goods or other reward; it is a common law misdemeanour. Whether compounding a misdemeanour is an offence is doubtful.

39. With the abolition of felony it is desirable that the law on these matters should be reconsidered. There are obvious objections to making a person criminally liable for not reporting to the police any minor offence of which he may happen to know. The present law of misprision is also open to objection in that it does not require that the omission to give information of the felony should be dishonest, and that it contains no clear limitations as regards offences committed even by near relatives.

40. On the whole we think that the only case needing to be provided for is one in which a person accepts or agrees to accept a bribe not to disclose information to the police. An offence of this character should replace the present law of misprision of felony and compounding offences. In specific terms we propose that it should be an offence to accept or agree to accept any consideration for not disclosing information about an arrestable offence other than consideration amounting only to the making good of, or reasonable compensation for, any loss or injury caused by the offence.

As in the case of an offence of impeding under clause 4, the offence of withholding information would apply only to information about an arrestable offence which has in fact been committed. We would also limit the offence to where the person concerned knows or believes that his information might be of material assistance in securing the prosecution or conviction of an offender for the arrestable offence. We recommend that the maximum penalty should be two years' imprisonment.

The necessary provisions are in clause 5(1). We propose that, as with the offence under clause 4, a prosecution for the offence under clause 5(1) should require the consent of the Director of Public Prosecutions [clause 5(3)] and that the offence should be triable summarily with the consent of the accused provided that the arrestable offence is so triable [clause 5(4)]. Clause 5(5) specifically abolishes the offence of compounding because of the possibility that it applies to misdemeanour.

41. As a result of the limitations proposed above the offence will not apply to a person who refrains from giving information because he does not think right that the offender should be prosecuted or because of a promise of reparation by the offender. It would be difficult to justify making the offence apply to those cases.

42. A more questionable limitation is that the offence would not apply to withholding information from the police, even in response to a question, out of mere unwillingness to assist them or to active concealment by positively misleading them, as in King's case referred to in para. 37 above. There is an argument for covering such cases and thus providing a penal sanction in support of the principle stated in the preamble to the Judges' Rules that citizens have a duty to help a police officer to discover and apprehend offenders. But public opinion would be unlikely to agree to an offence consisting of refusing to answer questions by the police about the commission of offences.

This would confer a power on the police, covering a wide range of offences and backed by a substantial penalty, similar to that conferred by section 6 of the Official Secrets Act, 1920 (c. 75), under which it is an offence to refuse to answer questions put by an authorised senior officer of police for the purpose of obtaining information about the commission of the most serious offences under the Official Secrets Acts: and even there permission has to be obtained from the Secretary of State before the information can be demanded.

In any event the offence would have to be subject to the right of the person being questioned not to give information about an offence to which he was himself a party, which right exists as regards the present offence of misprision, as mentioned in King's case. An offence of actively misleading the police might be easier to justify than an offence of refusing to give them information; but we do not think that there is a sufficient need to create it, and it would be difficult to distinguish between active misleading and mere withholding of information.".

1. Extract from the Seventh Report of the Criminal Law Revision Committee, (May 1965), Cmd. 2659, pp. 11-12, paras. 37-42

2. Aberg, (1948) 2 KB 173: 32 Cr App R 114.

3. King, (1965) 1 WLR 706.

4. Sykes v. D.P.P., (1961) 2 QB 9 (16): 45 Cr App R 230 (233).

(e) Criminal Law Act, 1967.-The Criminal Law Act recently passed in England has implemented the recommendation of the Criminal Law Revision Committee. The provisions of that Act-sections 1, 2(1), 5 and 12(6)-which are relevant to misprision, are quoted below:1

1. The Criminal Law Act, 1967 (Chapter 58) (21st July, 1967).