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JANUARY 26, 1951.



[1951] 1 ALL E.R. 464






Rountree for the appellant.

  1. M. G. Griffith-Jones for the respondent.


Elliot Mamie (for the appellant);

Treasury Solicitor (for the respondent).



IMMIGRATION LAW:- Alien – Musician – Breach of condition of leave to land – United Kingdom – Performance at a concert – Illegality – Implication for concert goers

CRIMINAL LAW:- Aiding and abetting criminal activity of an illegal alien – Paying for and enjoying a musical performance which included a segment by an illegal alien – Reporting in a laudatory manner for publication such performance – How treated

ENTERTAINMENT AND MEDIA LAW:- International musical performance – Immigration laws – Need to comply with same – Effect of failure thereto on patrons and performer – Musical critic – Reportage of musical performance of an illegal alien – Whether ground for criminal liability

EMPLOYMENT AND LABOUR LAW:- Illegal alien – Restriction on employment – Breach – Implication for patrons and alien





On Dec. 11, 1949, one H., a musician and a citizen of the United States, was granted permission to land in the United Kingdom under art. 1 (4) of the Aliens Order, 1920, on condition that during his stay he would not, take any employment, paid or unpaid. The appellant was present at the airport when H. landed and knew what condition had been imposed. That night H. attended a concert in a London theatre, and, on the invita­tion of the organisers of the concert, he gave a performance on the saxo­phone with other musicians. The appellant was present in the theatre throughout the concert, having paid for admission thereto, and later he wrote a laudatory commentary on H.’s performance in a magazine of which he was owner and managing editor and also published in the magazine a number of photographs.


HELD: the appellant’s presence at the concert was not accidental, and in the circumstances it was open to the magistrate to find that his presence was an encouragement to H. to commit an offence against art. 1 (4) of the Order, and, therefore, under, art. 18 (2), to convict him of aiding and abetting.


  1. v. Coney (1882) (8 Q.B.D. 534), applied.




This is a case stated by the metropolitan magistrate at Bow Street 11Tagistrate’s Court before whom the appellant, Herbert William Wilcox, the proprietor of a periodical called “Jazz Illustrated,” was charged on an information that on Dec. 11, 1949, he did unlawfully aid and abet one Coleman Hawkins in contravening art. 1 (4) of the Aliens. Order, 1920, by failing to comply with a condition attached to a grant of leave to land, to wit, that the said Coleman Hawkins should take no employment paid or unpaid while in the United Kingdom, contrary to art. 18 (2) of the Aliens Order, 1920.” Under the Aliens Order, art. 1 (1), it is provided that

“… an alien coming by sea to a place in the United Kingdom­(a) shall not land in the United Kingdom without the leave of an immigration officer …”


It is provided by art 1 (4) that

“An immigration officer, in accordance with general or special directions of the Secretary of State, may, by general order or notice or otherwise, attach such conditions as he may think fit to the grant of leave to land, and the Secretary of State may at any time vary such conditions in such manner as he thinks fit, and the alien shall. comply with the conditions so attached or varied …”


If the alien fails to comply, he is to be in the same position as if he has landed without permission, i.e., he commits an offence.


The case is concerned with the visit of a celebrated professor of the saxophone, a gentleman by the name of Hawkins who was a citizen of the United States. He carne here at the invitation of two gentlemen of the name of Curtis and Hughes, connected with a jazz club which enlivens the neighbourhood of Willesden. They, apparently, had applied for permission for Mr. Hawkins to land arid it was refused, but, nevertheless, this professor with four French musicians, when they came to the airport, among the people who were there to greet them was the appellant. He had not arranged their visit, but he knew they were coming and he was there to report the arrival of these important musicians for his magazine. So, evidently, he was regarding the visit of Mr. Hawkins as a matter which would be of interest to himself and the magazine which he was editing – and selling for profit. Messrs. Curtis and Hughes arranged a concert at the Princes Theatre, London. The appellant attended that concert, as a spectator. He paid for his ticket. Mr. Hawkins went on the stage and delighted the audience by playing the saxophone. The appellant did not get up and protest in the name of the musicians of England that Mr. Hawkins ought not to be here competing with them ând taking the bread out of their mouths or the wind out of their instruments. It is not found that he actually applauded, but he was there having paid to go in, and, no doubt, enjoying the performance, and then, to and behold, out comes his magazine with a most laudatory description, fully illustrated, of this concert. On those facts the magistrate has found that he sided and-abetted.


Reliance is placed by the prosecution on R. -v. Coney (1) – which dealt- with a prize fight. This case relates to a jazz band concert, but the particular nature of the entertainment provided, whether by fighting with bare fists or playing on saxophones [does] not seem to me to make any difference to the question which we have to decide. The fact is that a man is charged with aiding and abetting an illegal act, and I can find no authority for saying that it matters what that illegal act is, provided that the aider and abettor knows the facts sufficiently well to know that they would constitute an offence in the principal. In R. v. Coney (1) the prize fight took place in the neighbourhood of Ascot, and four or five men were convicted of aiding and abetting the fight. The conviction was quashed on the ground that the chairman had not given a correct direction to the jury when he told them that, as the prisoners were physically present at the fight, they must be held to have aided and abetted. That direction, the court held, was wrong, it being too wide. The matter was very concisely put by CAVE, J., whose judgment was fully concurred in by that great master of the criminal law, STEPHEN, J. CAVE, J., said (8 Q.B.D. 540)

“AN There presence may be entirely accidental, it is not even evidence of aiding and abetting. Where presence is prima facie not accidental it is evidence, but no more than evidence, for the jury.”


There was not accidental presence in this case. The appellant paid to go to the concert and he went there because he wanted to report it. He must, therefore, be held to have been present, taking part, concurring, or encouraging, whichever word you like to use for expressing this conception. It was an illegal act on the part of Hawkins to play the saxophone or any other instrument at this concert. The appellant clearly knew that it was an unlawful act for him to play. He had gone there to hear him, and his presence and his payment to go there was an encouragement. He went there to make use of the performance, because he went there, as the magistrate finds and was justified in finding, to get “copy” for his newspaper. It might have been entirely different, as I say, if he had gone there and protested, saying: “The musicians’ union do not like you foreigners coming here and playing and you ought to get off the stage.” If he had booed, it might have been some evidence that he was not aiding and abetting. If he had gone as a member of a claque to try to drown the noise of the saxophone, he might very likely be found not guilty of aiding and abetting. In this case it seems clear that he was there, not only to approve and encourage what was done, but to take advantage of it by getting “copy” for his paper. In those circumstances there was evidence on which the magis­trate could find that the appellant aided and abetted, and for these reasons I am of opinion that the appeal fails.





I agree that there was evidence sufficient to justify the finding of the magistrate.



I agree, and I wish to add only a word on the application of R. v. Coney (1). Counsel for the appellant sought to distinguish that case on the facts inasmuch as in R. v. Coney (1) the performance, which was a prize fight, was illegal from beginning to end, whereas in the case we are considering the bulk of the concert was quite legal, the only part of the performance which was illegal being that which involved Mr. Hawkins. That, however, is not, in my judgment, a distinction which affects the application to this case of the principle in R. v. Coney (1). It may well be that if a spectator goes to a concert he may explain his presence during an illegal item by saying that he hardly felt it necessary to get up and go out and then return when the performance resumed its legality, if I may so call it. It is conceivable that in such circumstances’ (and I should wish to consider it further if it ever arose) the presence of a person during one item might fall within the accidental or casual class which was envisaged by CAVE, J. Here there was abundant evidence, apart from the mere fact of the appellant’s presence, that he was making use of this item-.in the performance and that his attendance at that item was, therefore, deliberate: In those circumstances-, I think the principle in R. v. Coney (1) applies; and that the magistrate was justified in drawing the inference which he did draw.

Appeal dismissed with costs.

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