v. Harbouring of Offenders

punishment to which such crime is liable. The word "crime" has been underlined in order to show that this provision does not apply in the case of mere contraventions.

Otherwise, the definition of the offence is clear and does not require any explanation. We will only note that by sec. 157 where the person providing the means for affecting the escape is any one of the near relative of the fugitive mentioned in that section, no punishment is applied.

v. Harbouring of Offenders

In English law the harbouring of offenders constitutes, generally speaking, a form of accession after the fact. An "Accessory after the fact" is one who, knowing a felony to have been committed by another, receives, relieves, comforts or assists the felon. Any assistance given to one known to be a felon, in order to hinder his apprehension, trial, or punishment, is sufficient to make a man accessory after the fact, as, for instance, that he concealed him in his home, or shut the door against his pursuers, until he should have an opportunity of escaping, or supplied him with money, a horse or other necessaries, in order to enable him to escape228

We saw last year that our law knows no complicity after the fact. Certain acts which would in English law constitute such complicity are created by our law as substantive independent offences. The harbouring of offenders is precisely one such case. It is an offence against the administration of justice, because it tends to obstruct its course and frustrate the advantages which accrue to the community from the effective prosecution and speedy punishment of offenders.

Section 156 lays down:

Whosoever shall harbour or cause to be harboured any person condemned to death, knowing that such a person was so condemned shall be punished with hard labour or with imprisonment from seven months to one year. Whosoever shall knowingly harbour or shall cause to be harboured any person against whom there exists an order of arrest for any offence liable to the punishment of imprisonment for more than three months or of hard labour for any period of time, or to any more severe punishment, or

228 V. Archbold, op. cit., paras. 1461 - 1462

in cases where the Executive Police is seeking such individual for the purpose of arresting him for any such offence, or who has escaped from arrest for such offence, shall on conviction be punished with imprisonment form three days to three months."

In the first sub-section concerning the harbouring of a person sentenced to death, the law obviously requires that there should have been a legal conviction and sentence against the harboured offender and that the person harbouring him or causing him to be harboured is aware of such sentence.

In the second sub-section, concerning the harbouring of other persons, there need not have been already a conviction formally pronounced against them, nor indeed need they be at all actually guilty of any offence: it is sufficient if it is known that a warrant of arrest has been issued against them or that they are “wanted” by the Executive police or that they have escaped from arrest, in each case, for an offence liable to hard labour for any time or to imprisonment for a term exceeding three months or to any higher punishment. If these circumstances are known to the person harbouring the fugitive from justice or causing him to be harboured, he will not be exempted from punishment, even though the fugitive may have subsequently proved to be innocent of any offence.

Un danno produce all’ammistrazione della giustizia l'occultare un individuo qualunque che essa' ricerchi, o reo o innoconto che fosse del reato imputatogli" .

The fact of such innocence may operate in mitigation of the punishment.

In order that the punishment provided in the second sub-section may apply against the person harbouring or causing to be harboured the fugitive, it is necessary that the offence in respect of which a warrant of arrest was issued against him or for which he was already arrested or is searched for by the Executive Police, be of a certain gravity, i.e., liable at least to hard labour for any time or to imprisonment for more than three months. It is true, as Jameson, pointed out, that the obstruction to public justice and the injury to the public services does not depend entirely upon the gravity of the charge; but, on the other hand, when the offence for which the fugitive is "wanted” is of a trivial nature, and the injury to the community is consequently very small, the law can well afford to forbear from imposing a punishment which would be unjust once it cannot be justified by an indespicable necessity.