ii. Where the escape is favoured by the negligence or corruption of the persons in charge of custody of prisoners

wording of article 226 of seq. of the Italian Code of 1889 referring as they do to: "arrestat" and "condannato” and prescribing the punishment for, the escape by reference to the gravity of the offence or the kind and duration of the punishment yet to be undergone, clearly have reference to persons arrested or sentenced for criminal offences226 .

Whatever may be the correct solution of the problem under other systems of law, it is not thought that any question can arise under our law. In fact, sec. 158 Criminal Code applies all the provisions relating to the escape of persons arrested or sentenced, to the escape of any person lawfully confined from any place appointed for his custody. It is submitted that the general expression "persons lawfully confined" comprises also a person imprisoned for debt.

ii. Where the escape is favoured by the negligence or corruption of the persons in charge of custody of prisoners

Section 151 deals with the case in which the escape of any person under arrest or sentence is affected in consequence of the negligence or imprudence of the person charged with his custody, care or conveyance. In such case the person charged with the custody or care or Conveyance of the fugitive, is liable to punishment as follows:

(a) If the person escaping is accused of or sentenced for any crime liable to a punishment not exceeding two years hard labour or imprisonment or if he was in lawful custody for any cause other than a crime, to imprisonment for a term from one month to three months.

(b) If the person escaping is accused of or sentenced for any crime liable to a punishment exceeding two years but not exceeding five years' hard labour or imprisonment, to imprisonment for a term from four to six months

(c) If the person escaping is accused of or sentenced for any crime liable to a punishment exceeding five years, hard labour or imprisonment but not liable to the punishment of death, to imprisonment for a form from seven months to one year

226 Confer also Falzon, op. cit., pg. 357, para. 715. But it is to be remembered that Falzon wrote before Section 158 was added to the Criminal Code by Ordinance 1 of 1903

(d) If the person escaping is sentence to death or is accused of any crime liable to the punishment of death, to imprisonment for a term from thirteen months to two years.

Sec 152 deals with the case in which the escape of any person under arrest or sentence is affected with the connivances or corruption of the person charged with his custody, care or conveyance. The punishments prescribed for in the case of mere negligence or imprudence are here applied in hard labour and increased by one degree and the punishment of perpetual general interdiction is added.

Finally, sec. 155 provides that the punishments laid down in the two preceding sections shall be increased by one degree where the escape is affected by violence to the person or with breach of the place of confinement or punishment or by the conveyance into such place of any instrument or weapon to facilitate the escape.

From the foregoing provisions it will be seen that the law has in no case applied to the person charged with the custody, care or conveyance of the fugitive, the rules of complicity. In the case of mere negligence or imprudence the application of such rules was, of course, impossible because a negligent complicity is, as we saw last year, inconceivable, complicity always predicating a common design. But even in the case of connivance or corruption, to have applied the rules of complicity would not have met the case in all hypotheses. The law punishes the connivance or corruption of the person charged as aforesaid even when, as in the case of simple escape by a person under arrest, the fugitive himself is not liable to any punishment; in such case, as the principal act (the escape) is not criminal, it would have been impossible to punish the connivance or corruption as an act of complicity. Moreover, there may be acts of connivance e.g., letting the escape take place although being in a position to prevent it, which do not constitute acts of complicity proper.

The law, therefore, punishes the negligence or imprudence or the connivance or corruption of the officer in all cases as a substantive independent offence. And, in the case of connivance, the motive which may have induced it is irrelevant.

Laciarsi quindi sedurre o dalle preghiere del detenuto, dalla commiserazione per la di lui sorte o dalla ingiustizzia istessa della persecuzione cui forse il vegga soggiacere o da altra qualunque benché non turpe cagione; Bon circostanze tutte che, senze escludere la reità per connivenza possono tutt'al più influire perchè la pena si applichi con minor rigore nella latitudine del grado assegnatole dalla legge. "

iii. Where the escape is aided or abetted by persons not having the custody of prisoners

Having considered the matter of escape in regard to the fugitive himself and in regard to those in charge of the custody, care or conveyance of the prisoner, our third enquiry concerns all other persons, who, not being so in charge, aid or abet the escape.

In Roman law these other persons were punished in the same manner as those who were in charge and connived at the escape. But our law considers the offence of these latter more serious than that of the former because they commit, at the same time, also an abuse of their office and public trust and are moreover in a position of much more easily favouring the escape. Therefore sec, 154 lays down:

Whosoever, not being in charge of the custody, care or conveyance of any person under arrest or sentence shall facilitate or be an accomplice in the escape of such person shall, on conviction, be liable to the punishment established for the person so charged and conniving, decreased by one degree."

But this diminution of punishment does not apply where the escape has been affected by violence on the person or by breach of the place or by conveyance into such place of any instrument or weapon to facilitate escape. In these cases, the stranger who aids or abets the escape is liable to the same punishment prescribed for the person in charge of the custody, care or conveyance of the prisoner: this is fully justified in such cases by the gravity of the danger inherent in the means used and by the more effective concurrence constituting the aid or assistance in escape.

Only, the Court can in all cases substitute the punishment of imprisonment for the punishment of hard labour (see. 154 (2)).

Now it must be noted that whereas in the case of the persons in charge of the custody etc, of the prisoner, the law speaks of connivance and not of complicity for the reasons already stated, in the case of these other persons the law makes their offence consist in "facilitating or being accomplice in the escape". If therefore in the case of the former persons, mere tacit acquiescence in the escape or the mere non-prevention of the escape constitute connivance, are sufficient to give rise to their offence, in the case of the latter persons, a more direct and positive aiding or abetting, in fact such as