In Victorian England, a man sees his brother, who has escaped from prison where he’s about to be hanged for stealing a sheep to feed his hungry family, being entertained at a party by people who don’t know his identity. The man flees, not telling anyone his brother’s identity.
Later, the party guests learn that the condemned man has escaped. They (including the hangman, who’s just been hired) hunt down and return to the prison the man who fled the house, assuming that he’s the wanted man.
At the prison, they’re informed they’ve got the wrong man, who freely confesses that his brother was at the house. (He left with the “posse”, but sneaked off in the dark.) The “wrong man” is released without charge, and his brother escapes entirely.
Question: I don’t know what the law was back then, but does this sound correct? Setting aside whether he would have been believed or not, did he have a positive duty to denounce his brother? Is he an accessory after the fact to his brother’s escape?
Not a Victorian English law expert, but it sounds right to me. You’ve got the right to remain silent, on the one hand, and on the other, you’ve got the fact that there’s nothing in the facts suggesting that the non-escaped brother did anything to affirmatively aid the escapee. If he led the mob away with the specific purpose of giving his brother a chance to escape, that would be different. Leaving because he was scared isn’t legally different from just sitting at the party and not saying anything. And there’s nothing illegal about not saying anything.
The legal term for what you are describing is misprision. I am not a law librarian, but what I can find indicates that it was indeed a misdemeanor crime in England up until 1967, when the Criminal Law Act changed it such that you could only be charged by accepting payment not to make a report you would otherwise have made. This source from Marquette Law Review states that English judicial theory upheld the positive duty to report felonious crime, but also that prosecution for misprision in England was very rare.
If you have a login for JSTOR, here is another article from the Virginia Law Review that discusses the history of misprision. (It mostly talks about the US, but it does talk about the origins of the offense in English common law.)
In the US today, misprision would only apply in a case of some active concealment of the underlying crime. In the UK today, I believe, in cases of terrorism there is still an affirmative duty.
It’s possible that the relevant jurisdiction at the time could have considered sheep stealing a misprisable offense. Offence.
Yeah, my read would be that the potential misprision would be in failing to report the escape, not the original sheep-stealing.
Yes, the sheep stealing had taken place some time before. The crime in the story is the escape.