Tutorial 5 - Accessorial and inchoate offences Flashcards
1
Q
R v Mohan [1967] QB 1
A
- D, in response to a police officer requesting him to stop his car, slowed down then sped up towards the police officer, who jumped out the way. D charged with an attempt by wanton driving to cause bodily harm to the police officer
- appealed on the grounds that he did not intend to cause bodily harm to the police officer
- appeal allowed - mens rea is an essential part of attempted offences
2
Q
R v Khan (1990) CAR 29
A
- D intends to commit a crime where D intends the act and consequences and is at least reckless about circumstances where recklessness suffices for the main offence under s1 of the Criminal Attempts Act
- Ds were convicted of attempting to rape a 16yo girl - original judge directed jury that they could only be convicted of attempted rape if they met the mens rea requirement for rape - recklessness as to whether or not V consented
- appeal dismissed - judge directed jury correctly on mens rea
- Russell LJ - ‘the intent of the defendant is precisely the same in rape and in attempted rape and the mens rea is identical, namely, an intention to have intercourse plus a knowledge of or recklessness as to the woman’s absence of consent’ - where no state of mind except recklessness exists in an offence (eg reckless driving), there can be no attempts to commit it
- based on the old definition of rape, where recklessness as to consent was sufficient mens rea - its now been changed to proof that D did not reasonably believe that the victim consented
- latter rejected in Pace, where the Court of Appeal held that the words “with intent to commit an offence” involve an intent as to every element constituting the crime including the circumstances
3
Q
R v Pace and Rogers[2014] EWCA Crim 186
A
- mens reafor attempt requires intent as to the requisite circumstances of the substantive offence, even if the substantive offence requires a lesser form ofmens rea
- Ds ran a scrap metal business and were approached by undercover police officers and given metal that offices imitated was stolen. Charged with attempt to conceal, disguise or convert criminal property - mens rea of this offence requires proof that they ‘knew or suspected’ the metal was stolen - judge held that suspicion it was stolen was sufficient mens rea and directed the jury as such
- appeal allowed - this was a misdirection - mens rea for the offence required intention rather than suspicion it was stolen
- Davis LJ - “as a matter of ordinary language and in accordance with principle, an ‘intent to commit an offence’ connotes an intent to commit all elements of the offence” - they had no intent (did not know or believe) regarding the metal being stolen property
- departed from the decision in Khan - however the offence in Khan only required recklessness and was not impossible in the circumstances (in Pace they couldn’t have handled stolen goods because it wasn’t stolen) - Davis LJ also pointed out that inKhanthe court made it clear that it was not purporting to set out an approach that would apply to every offence
- arguments in support of the decision: creates a higher level of culpability for attempt in comparison to the substantive offence, literal interpretation of the statute since intent to commit the crime should be intent to all of its circumstances
- arguments against the decision: Graham Virgo argues that the decision unduly restricted the scope of attempt, the case should instead be decided on the ground that Ds did not believe that the scrap metal was stolen and thus s1(3)(b) is not met, Matt Dyson suggests that the interpretation of s1(1) is plausible, for reasons of policy it should not be followed, for example, to be charged with attempted rape the defendant would have to intend that the victim refuse consent
4
Q
Attorney-General’s Ref (3 of 1992) [1994] 1 WLR 409
A
- Proposed the missing element test formens reaof attempt: to be liable for attempt D must intend a missing physical (actus reus) element of the substantive offence to be present
- Ds attempted aggravated arson, reckless as to whether or not life was endangered - threw petrol bombs at a car with people in but missed - under s1(2) of the Criminal Damage Act 1971, recklessness as to endangerment of lives suffices for the substantive offence of aggravated arson
- judge ruled that danger to life was a consequence of the intended damage and required a specific intent so recklessness was not sufficient - directed that D be acquitted - AG appealed for opinion on whether recklessness was sufficient
- appeal dismissed – the appropriate mens rea for attempted aggravated arson is intention to damage property and recklessness as to the endangerment of life
- Schiemann J - the ‘missing element test’ - “One way of analysing the situation is to say that a defendant, in order to be guilty of an attempt, must be in one of the states of mind required for the commission of the full offence and did his best, as far as he could, to supply what was missing from the offence.” - the endangerment of life is not a physical element of the substantive offence but a pure mental element since it is not necessary to show that anybody’s life has been endangered; it suffices that the defendant had unjustifiably foreseen the risk of such endangerment
- Matt Dyson - under this “missing element test” D would be liable for attempt where he was reckless about external elements that have come about (if recklessness suffices for the complete offence), but intends any that have not occurred. This might even mean D is liable where he was reckless aboutconsequenceswhich had occurred and intended(missing)circumstances,though such situations will be rare
5
Q
R v Jones [1990] 3 All ER 886
A
- words in s(1) Criminal Attempts Act 1981 should be given their natural meaning
- D prepared to murder V by sawing off the edge of a shotgun, climbing into the back of V’s car and pointing the gun at him - gun couldn’t fire as safety was still on and V threw the gun out of the window
- D charged with attempted murder - counsel argued that the ‘last act’ test fromR vEagleton (1854) 5 Dears C.C. 515should apply to s1(1) Criminal Attempts Act 1981, under which D must have reached a point of no return to be charged with attempt
- appeal dismissed - the ‘last act’ test did not need to apply
- Taylor LJ - ‘correct approach is to look at the natural meaning’ of words used in s1 Criminal Attempts Act, ‘not to turn back to earlier case law’ - D’s acts in sawing off the gun and getting in the car could only be regarded as preparatory acts, but once he had pointed a loaded gun at V with the intention of killing him it was ‘more than merely preparatory’
6
Q
R v Gullefer [1987] Crim LR 195
A
- common law tests for actus reus before the 1981 act no longer have any application
- D climbed onto a greyhound track race to try to stop a race which he had bet on (his dog was losing and he hoped to recover his £18 stake) but the stewards decided not to stop the race
- D charged with attempting to steal £18 from the bookmaker under the Criminal Attempts Act 1981 - appeal allowed - D had not committed acts which were ‘more than merely preparatory’ to the offence of theft
- Lord Lane CJ - D had not ‘embarked upon the actual commission of the offence’ - not necessary to apply the law from before the 1981 act, under which D must have reached a ‘point of no return’ in respect of the full offence, or must have done an act ‘forming part of a series of acts’ which constitute the crime
7
Q
R v Campbell (1991) 93 CAR 350
A
- D must be in a physical location where he can commit the intended offence to be guilty of an attempt
- D convicted of attempted robbery of a post office but was stopped by police officers before entering and found to be carrying an imitation gun and a threatening note
- D appealed, arguing that he intended to rob the post office but had changed his mind but was arrested before he could leave
- appeal held - D’s acts were not ‘more than merely preparatory’ - suggests that D must have entered the post office in order to be guilty of an attempt
- Watkins LJ - no reference to case law prior to 1981 Act should be made - ‘If a person, in circumstances such as this, has not even gained the place where he could be in a position to carry out the offence, it is extremely unlikely that it could ever be said that he had performed an act which would properly be said to be an attempt’
8
Q
R v Geddes [1996] Crim LR 894
A
- lying in wait with prepared weapons and equipment to perform an offence does not amount to an attempt
- D climbed into school and was found in the boys’ toilets with a large knife and rolls of tape - appears he intended to kidnap a child but did not make any contact with staff or children
- D convicted of attempted false imprisonment
- appeal allowed - no jury could have concluded that D’s acts went above ‘mere preparation’
- he hadn’t yet encountered the victim
- Lord Bingham CJ - no rule of thumb test for what goes beyond ‘mere preparation’ - D had not actually tried to commit the offence, just prepared to do it
- very strict interpretation of the Criminal Attempts Act - controversial for public safety as it requires an attack to have started before police arrest in order for it to be an attempt
9
Q
R v Tosti [1997] Crim LR 746
A
- Ds were found by a farm owner examining the lock on one of his barns with welding equipment nearby - convicted of attempted burglary
- appealed - suggested they had not done anything which was ‘more than merely preparatory’
- appeal dismissed - examining the lock was ‘more than merely preparatory’ to enter the barn as trespassers - they had taken the first steps in committing burglary
10
Q
R v Taafee [1983] 2 All ER 625
A
- D imported cannabis, believing that it was currency, but also believing that importing foreign currency was prohibited - charged with ‘knowingly importing’ cannabis
- appeal allowed - although it was sufficient that D did not know the precise nature of the goods, he had to be judged against the facts as he believed them to be
- since he would not be committing an offence if the goods were currency, his belief that he was illegally importing currency did not meet the mens rea requirements
11
Q
Anderton v Ryan [1985] AC 560}
A
- D is not liable for attempting a criminal act if he mistakenly believes himself to be committing a crime - precedent overruled in Shivpuri
- D handled a cassette, believing it to be stolen, but it was not - charged with attempted handling of stolen goods contrary to s1(1) Criminal Attempts Act 1981
- appeal allowed - D acquitted - D’s act was ‘objectively innocent’ and would not constitute the substantive offence even if completed
- Lord Roskill - Criminal Attempts Act 1981, s1(3) ‘does not compel the conclusion that an erroneous belief in the existence of facts which, if true, would have made his completed act a crime makes him guilty of an attempt to commit that crime’
- Lord Bridge - “The common feature of all these cases, including that under appeal, is that the mind alone is guilty, the act is innocent.” (after giving various examples)
- Lord Edmund Davies dissenting - “The legality of [the defendant’s] conduct now falls to be judged by applying the Act, her belief being vitally relevant not only to her intent but also to the quality in law of her ‘objective’ actions.” - majority failed to interpret s1(3) correctly
12
Q
R v Shivpuri [1987] AC 1
A
- overruled Anderton v Ryan - a mistaken belief by D that he was committing an illegal act can render him liable for an attempt
- D believed he was smuggling drugs but he was not - convicted of an attempt
- Appeal dismissed - found to have attempted to smuggle drugs
- Lord Bridge - “What turns what would otherwise, from the point of view of the criminal law, be an innocent act into a crime is the intent of the actor to commit the offence.”
- Lord Bridge stated that theHouse of Lords inAnderton v Ryanhad been misled by the prosecution on the opinion of the Law Commission in its 1980 report - in A v R they focused on hypothetical cases like an adult having sex with someone he believes to be 16, and the Law Com. report emphasised that such cases are unlikely to be prosecuted even if they would be found guilty
13
Q
NCB v Gamble [1959] 1 QB 11, [1958] 3 W.L.R. 434 - aiding and abetting
A
- oblique intent is sufficient to be an accessory to a crime
- D (an employee of the National Coal Board) allowed a truck driver to carry an excess load of coal - driver convicted of contravening the Motor Vehicles (Construction and Use) Regulations, 1955 - D tried as an accessory and convicted
- D appealed on the basis that he had no motive to encourage the commission of the principal offence
- appeal dismissed - the question of motive is irrelevant
- Parker LJ - ‘If one man deliberately sells to another a gun to be used for murdering a third, he may be indifferent whether the third man lives or dies and interested only in the cash profit to be made out of the sale, but he can still be an aider and abetter.’ - aiding and abetting requires intention to aid (which can be presumed when assistance to the criminal is a natural and probable consequence of supplying an essential material), knowledge of the circumstances and a positive act of assistance
14
Q
R v Clarkson [1971] 1 W.L.R. 1402, [1971] 3 All E.R. 344 - aiding and abetting
A
- aiding and abetting must include positive encouragement
- D stood by and watched a woman be raped - no evidence of active participation or encouragement
- appeal allowed and conviction quashed
- Megaw LJ - D’s presence not sufficient for a conviction because he didn’t encourage the rape in any way
15
Q
R v Calhaem [1985] QB 808, [1985] Crim. L.R. 303 - counselling
A
- D can be guilty as an accessory for counselling without any causal link between the counselling and the principal offence
- D counselled Z (hired as a hitman) to murder V - Z decided not to but and was going to warn her but he went berserk, panicked, shot and killed V anyway - D convicted of murder under s8 Accessories and Abettors Act 1861 - appeal on the basis of the lack of causal connection
- appeal dismissed and conviction held
- test: was the act of the principal within the scope of the counselling? - is the act fundamentally different? - scope can be limited by specificity in instruction
- Parker LJ - D is guilty if the principal offence is committed by the one counselled acting within the scope of his authority and not in the accidental way - counsel is to be given its ordinary meaning of advise and under the Act there is no implication of a necessary causal connection between the counselling and the offence
16
Q
A-G’s Reference (No. 1 of 1975) [1975] QB 773, [1975] 2 All ER 684 - procuring
A
- Under the offence of procuring, there need not be shared intention between the person procuring an offence and the person committing it
- D slipped alcohol in P’s drink without P’s knowledge and P convicted of drink driving - judge dismissed the case against D for procuring P’s offence as there was no shared intention between them
- appeal dismissed - there was no need for shared intention in order for D to be guilty
- Lord Widgery CJ - to procure means to ‘produce by endeavour’, there need not be agreement or discussion between the person committing the offence and the person procuring it - cannot procure an offence unless there is a causal link between D’s actions and the offence happening
17
Q
R v Bainbridge [1960] 1 QB 129, [1959] 3 W.L.R. 656
A
- To be guilty of aiding and abetting, the accessory must have knowledge of the intention of the principal to commit an offence of thetypeof offence that was actually committed
- D sold some oxygen cutting equipment, which he suspected was wanted for illegal purposes, which was used in a bank break in
- judge directed to convict if they were satisfied that D had knowledge of the intention to commit the type of offence - D appealed as he didn’t know the exact details so called this a misdirection
- appeal dismissed - knowledge of the time, place and details of the crime is unnecessary if D knows of the intention to commit the type of crime
- Lord Parker CJ - not necessary to show knowledge of the particular crime (meaning the date and premises concerned) - suspicion is insufficient, the prosecution has to show that D had knowledge that that type of crime would be committed
18
Q
DPP NI v Maxwell [1978] 1 W.L.R. 1350, [1978] 3 All ER 1140
A
- Knowledge of the type or range of possible offences that may be committed by the principal, but not the specific offence, is sufficient
- D was a member of Ulster Volunteer Force (a terrorist organisation in Ireland) and drove other members to an inn where they planted a bomb - convicted as an accessory
- appealed on the basis he didn’t know they would plant a bomb
- appeal dismissed
- Lord Lowry - it was sufficient if the person giving aid knew the type of offence to be committed or the essential matters constituting the offence - D would have known given his membership of the UVF that they carried out armed attacks on people and property
19
Q
R v Bryce [2004] EWCA Crim 1231. [2004] 2 Cr. App. R. 35
A
- an accessory only needs to have foresight of thepossibilityand not certainty of the principal offence being committed
- D drove the principal offender, X, to a caravan near V’s home, where X hid and then murdered V - while in the caravan X changed his mind about the murder multiple times - D was convicted of murder as an accessory
- D appealed on the grounds that X had not yet formed his intention when D drove him to the caravan
- appeal dismissed - it was sufficient that D had foreseen the possibility of a murder
- Potter LJ - all that was necessary in the accessory was foresight of the real possibility that an offence would be committed by the person to whom the accessory’s acts of assistance were directed
20
Q
R v Jogee [2016] UKSC 8, [1]-[17], [36]-[38], [46] and [61]-[100]
A
- held that D must intend for the principal offender to commit the principal offence, not just foresee it
- removed the doctrine of joint enterprise liability from English law: an accessory must have intended to assist in the commission of the principal offence, and not merely have foreseen it
- J and his co-defendant (H) had been drinking alcohol and taking cocaine. They had visited R with whom J was acquainted. They left and H later returned on his own and became aggressive towards R’s boyfriend (F). R telephoned J and asked him to take H away, which he did. A few minutes later, J and H returned. H entered the flat uninvited and stabbed F in the chest with a knife from the kitchen. J remained outside the front door and F died shortly after being stabbed. The case against J was on the basis of a joint enterprise where J had participated by encouragement. The judge directed the jury that it could only convict J as a secondary party if he knew that H had the knife and shared his intention to kill or do really serious bodily harm or realised that H might use the knife with the intention to kill or cause serious bodily harm and nevertheless took part by encouraging H - J convicted on the basis he had foreseen that a murder would be committed as a part of a criminal joint enterprise
- appeal allowed and doctrine of joint enterprise liability removed - replaced by accessorial liability
Lords Hughes and Toulson - rejection of Chan Wing-sui v The Queen [1985] AC 168 - removal of joint enterprise liability - ‘The rule brings the striking anomaly of requiring a lower mental threshold for guilt in the case of the accessory than in the case of the principal’ - Privy Council had merged foresight with intention to assist - ‘The error was to equate foresight with intent to assist, as a matter of law; the correct approach is to treat it as evidence of intent’
- mens rea for accessorial liability - D was a participant (encouraged or participated in the offence) and D had intention to assist or encourage the commission of the offence, acting with the mens rea requirements for the principal offence
- inference of intention from foresight - foresight by D that in the course of committing crime A, the principal offender might well commit crime B may in appropriate case justify drawing the conclusion that D had the necessary conditional intent that crime B should be committed, if the occasion arose
- knowledge of weapon - intention to assist is not determined by D’s knowledge of the kind of weapon the principal offender has - knowledge or ignorance that the principal offender is carrying any weapon will be evidence used for D’s intention, but it is evidence and nothing more
21
Q
R v Anwar [2016] EWCA Crim 551
A
- Jogee makes no difference to the evidence required to prove mens rea and the outcomes of cases are likely similar to before Jogee
- V entered a car to buy cannabis and had a shotgun and a knife pulled on him, then a van came by with more men. V escaped to his car and was shot at twice. Total of 6 Ds were charged with illegal possession of a firearm and attempted murder.
- Original judge dismissed the case, citing Jogee, holding that there was no evidence to prove that any D was aware the shotgun was loaded and intended to kill
- Crown submitted an appeal on the grounds that the evidence supported a safe inference that anyone who agreed to and participated in the robbery must have known that a loaded gun was being carried and intended that it be used with intent to kill should the need arise
- appeal allowed - Ds convicted of illegal possession of a firearm and attempted murder - it can be safely inferred that each D knew the gun was loaded and intended for it to kill V based on the prior planning of the attack
- Sir Brian Leveson - ‘we find it difficult to foresee circumstances in which there might have been a case to answer under the law before Jogeebut, because of the way in which the law is now articulated, there no longer is’ - ‘the same facts which would previously have been used to support the inference of mens rea before the decision in R v Jogee will equally be used now’
22
Q
R v Johnson (Lewis) [2016] EWCA Crim 1613
A
- Jogee is unlikely to affect the outcome of joint enterprise cases despite a difference in jury direction
- 6 cases where Ds had been convicted of murder or wounding with intent to do GBH prior to Jogee - after Jogee 5 appealed for an extension of time to give notice for applications to appeal within the Criminal Appeal Act 1968 and one appealed within the time limit to give notice for appeal
- the one that appealed within the time limit - appeal dismissed - even though the judge had misdirected the jury on joint enterprise, the case had been proved against D as a principal offender or an accessory on normal accessorial principles
- other 5 cases - extension to appeal denied - courts won’t grant extension based only on misdirection, there has to be substantial injustice - verdicts would likely be no different following Jogee - in each of the cases it was possible to infer the necessary (conditional) intention that the primary offence be committed, particularly since underJogee, knowledge of the kind of weapon used by the primary offender is not necessary
23
Q
R v Gilmour [2000] 2 Cr App R 407
A
- if a principal has an intention beyond that contemplated by the accessory, the accessory is liable for the lesser offence appropriate to the mens rea he contemplated the principal to have
- D was a getaway driver for members of the Ulster Volunteer Force who threw a petrol bomb at a house, killing 3 children and injuring 3 adults - D convicted as an accessory to murder and GBH - appealed on the basis he was unaware the bomb was intended to kill or severely injure
- helping someone after a crime has taken place is not assisting or encouraging the offence - later reaction can be useful as evidence for intention but the question is always the intent at the time of the assistance and encouragement
- appeal allowed - murder conviction substituted for manslaughter as D had not appreciated that the principal offenders intended to inflict GBH
- Lord Carswell CJ - where the actus reus of the principal departs or goes beyond what the accessory had foreseen, the accessory is not guilty of the offence committed by the principal - but where the actus reus of the principal is the same as what the accessory had foreseen but the principal’s mens rea departs from what the accessory had foreseen, the accessory is not liable beyond what he had foreseen the principal to have intended
24
Q
R v Howe [1987] AC 417, [1987] Crim. L.R. 480
A
- duress is no defence to murder
- an accessory can be guilty of procuring or inciting murder even when the principal offender has only committed manslaughter
- joined appeals for 2 murder cases - both where defendants (D1) committed murder but claimed they feared they would be killed (by D2) if they didn’t
- in both cases jury was directed that duress is no defence to murder and in the second case the jury was directed that if D1 was only guilty of manslaughter then D2 could not be guilty of murder
- appeal dismissed in both cases - duress is no defence to murder
- judge misdirected jury in the 2nd case - D2 could have procured or incited murder even if D1 only committed manslaughter
- Lord Griffiths - duress is no defence because “It is based upon the special sanctity that the law attaches to human life and which denies to a man the right to take an innocent life even at the price of his own or another’s life.”
- Lord Hailsham - ‘duress arises from the wrongful threats or violence of another human being and necessity arises from any other objective dangers threatening the accused’
25
Thornton v Mitchell [1940] 1 All ER 339
- where the principal is acquitted of the offence, the accessory cannot be guilty of the aiding, abetting or procuring the offence
- a bus conductor (D1) negligently signalled for a bus driver (D2) to reverse and he knocked down 2 pedestrians and killed one - D2 acquitted but D1 convicted for procuring reckless driving causing death
- D1 appealed and was acquitted
26
R v Millward (1994) 158 J.P. 1091, [1994] Crim. L.R. 527
- an accessory can be guilty of an offence by procuring the actus reus of that offence without the principal having mens rea
- D1 directed him employee D2 to tow a trailer using a tractor on the main rode but the trailer detached and killed some passengers in the car (due to the tractor’s hitch being poorly maintained)
- D2 acquitted of any wrongdoing but D1 convicted as an accessory to causing death by reckless driving - appeal dismissed and conviction seen as correct
- Scott Baker J - procuring does not require a joint intention between accessory and principal. The procurer may, therefore, be convicted where the principal lacks the necessary mens rea - ratio of Thornton and Mitchell was that the driver did not commit the actus reus of careless driving as he relied on the conductor’s signals
27
R v Rook [1993] 2 All ER 955, [1993] Crim LR 698
- for an accused to successfully withdraw from a criminal enterprise that he had participated in, the minimum requirement is unequivocal communication of his withdrawal to other perpetrators
- a man hired 3 men including D to kill his wife, but on the day D did not turn up and the wife was killed by the other 2 men. D convicted for murder as part of a joint enterprise because he assisted and encouraged the crime - appealed on the basis he had withdrawn from the crime
- appeal dismissed - D had not effectively withdrawn himself
- Lloyd LJ - D’s absence on the day of the murder was not ‘unequivocal communication’ of his withdrawal, so he didn’t meet the minimum requirement - unnecessary to decide in this case whether unequivocal communication of withdrawal is enough in itself to withdraw D (had he done so) or further steps must have been taken to neutralise his assistance
28
R v Becerra and Cooper (1976) 62 Cr App R 212
- for an accused to successfully withdraw from a criminal enterprise that he had participated in, the minimum requirement is unequivocal communication of his withdrawal to other perpetrators
- D1 provided D2 with a knife prior to burglary, then left the scene when he saw a man shouting “come on, let’s go”. D2 killed V with that knife and D1 was convicted as an accessory to murder - appealed on the basis that he had withdrawn as an accessory
- appeal dismissed - “come on, let’s go” was not sufficient to be ‘unequivocal communication of his withdrawal’
- Roskill LJ - something more than a change of intention and physical change of place is needed to withdraw from a common enterprise
29
R v O’Flaherty [2004] EWCA Crim 526, [2004] Crim LR 751
- withdrawal from a joint enterprise that is spontaneous rather than pre-planned can be possible by disengaging without communication to other perpetrators
- 3 Ds (F, R and T) joined in an attack on V, then there was a second attack in which V sustained fatal injuries. R and T left before the second attack but F stood and watched it (not joining in). All 3 were convicted of murder
- appeal allowed for R and T - they had not been part of the second attack
- appeal dismissed for F - F’s continued presence was enough to show that he aided and abetted the murder
- Mantell LJ -‘Whether the defendant had done enough to withdraw from a joint enterprise is a question of fact and degree for the jury. Account will be taken inter alia [among other things] of the nature of the assistance and encouragement already given and how imminent the infliction of the fatal injury or injuries is, as well as the nature of the action said to constitute withdrawal’ - unnecessary to take steps to prevent the crime for there to be withdrawal - communication of withdrawal is a necessary condition for disassociation from pre-planned violence but it is not necessary when the violence is spontaneous
30
R v Tyrell [1894] 1 QB 710
- where a statutory offence is created with the intention of creating a group of victims, a victim cannot be an accessory to the offence (known as the ‘Victim Rule’)
- D was a girl charged with aiding, abetting, counselling and procuring a man to have sex with her whilst she was under 16, contrary to s5 Criminal Law Amendment Act 1885
- appeal allowed and conviction quashed - a victim cannot be an accessory to a crime against themselves
- Lord Coleridge CJ - ‘it is impossible to say that the Act, which is absolutely silent about aiding or abetting, or soliciting or inciting, can have intended that the girls for whose protection it was passed should be punishable under it for the offences committed upon themselves’
- in Gnango it was held that this case does not state the general proposition that a victim can never be an accessory to a crime where he or she is the intended victim, it only applies where the offence is created by a statute intended to protect the victim
31
R v Gnango [2011] UKSC 59, [2012] 1 A.C. 827
- a victim can be an accessory to a crime where they are the intended victim
- under the doctrine of transferred malice, the intended victim of a primary offence can be an accessory where the offence was accidentally inflicted on a third party
- D was in a gunfight with X when X accidentally shot a passer-by - D charged with aiding and abetting the murder of V
- appeal dismissed - D was guilty as an accessory to murder under the doctrine of transferred malice
- Lord Phillips with Lord Judge - required the jury to consider whether the A and B had a ‘common plan or agreement to shoot at each other and be shot at. If they were so satisfied, and their verdict indicates that they were, this was a proper basis for finding that the respondent was guilty of murder.’ - demands of justice’ requires D to be guilty for murder since ‘it is a matter of fortuity matter of fortuity which of the two fired what proved to be the fatal shot. In other circumstances it might have been impossible to deduce which of the two had done so’
- Lord Brown - Gnango should not be regarded as an accessory to murder but a principal offender
32
R v Sadique (No2) [2013] EWCA Crim 1150
- Mens rea of s46 Serious Crime Act 2007: the defendant must believe that his conduct will assist in the commission of one or more offences, but does not have believe that a precise offence will be committed
- D’s business had supplied drug rings with chemicals used to cut drugs. D convicted of assisting the supply of class A and class B drugs under s46 SCA 2007
- Sadique (No1) - Court of Appeal held that under s46 SCA 2007 D must believe that a specific, identified offence will be committed and that each offence which his act is capable of assisting or encouraging must be charged as a separate count in the indictment - criticised for effectively rendering s46 redundant and a duplicate of s45
- D appealed on the basis that he should be charged under s45 instead for separate offences of assisting the supply of class A drugs and assisting the supplying of class B drugs , the indictment under s46 was duplicitous (containing more than one offence) and uncertain
- appeal dismissed - the indictment was not impermissible for duplicity
- Lord Judge CJ - “the 2007 Act created three distinct offences. It is not open to the court to set one or other of them aside and the legislation must be interpreted to give effect to the creation by statute of the three offences” - s46 is an independent offence which recognises the ‘practical reality’ that D may believe that his conduct will assist the commission of a variety of offences without knowing the precise offence which will be committed
- Graham Virgo - “Since each contemplated offence must now be charged as a separate count, the defendant can only be convicted if he or she believed that a specific offence would be committed; that is the same as the conditions for conviction under section 45. It follows that a defendant who contemplates a number of offences being committed but does not believe any specific crime would be committed, cannot be guilty of assisting or encouraging an offence. That is an unfortunate restriction on the ambit of liability and will cause problems in future.”
33
R v Anderson [1986] AC 27
- mens rea for conspiracy does not require the defendants to intend that their agreement actually be carried out (overruled in Yip)
- D convicted of conspiring with others to help a prisoner escape - D agreed to purchase and supply diamond wire to cut through metal bars but was injured and unable to smupply the wire
- D argued that the mens rea for conspiracy required each conspirator to not only agree to a course of conduct that will involve the commission of an offence if carried out, but also intend that the offence be committed, D claimed that he did not intend the plan to come into effect or believe that it could succeed
- appeal dismissed - conspiracy can be committed even when conspirators don’t intend for the agreed course of conduct to be carried out
- Lord Bridge - ‘In these days of highly organised crime the most serious statutory conspiracies will frequently involve an elaborate and complex agreed course of conduct in which many will consent to play necessary but subordinate roles, not involving them in any direct participation in the commission of the offence or offences at the centre of the conspiracy. Parliament cannot have intended that such parties should escape conviction of conspiracy on the basis that it cannot be proved against them that they intended that the relevant offence or offences should be committed.’ - ‘the necessary mens rea of the crime is, in my opinion, established if, and only if, it is shown that the accused, when he entered into the agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve. Nothing less will suffice; nothing more is required.‘
- in Yip the Privy Council held that it had to be shown that every alleged conspirator intended the agreement to be carried out
- decision criticised by Prof J Herring - ‘intent to play some part in the agreed course of conduct is a novel suggestion, the key element of a conspiracy is an agreement, not the carrying out of the plan, it will also lead to difficulty in determining what could be said to constitute carrying out an element of the plan’ - Anderson may not have believed the plan would be successful but ‘it is possible to intend a result without thinking one is likely to achieve it’
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R v Siracusa (1990) 90 CAR 340
- a conspirator doesn’t have to intend to play an active part in the agreed course of conduct - he can still participate passively through consent
- liability for conspiracy is limited to the intended consequences of D’s action
- Ds were charged with importing cannabis (count 1) and heroin (count 2) as part of a conspiracy - appealed on the grounds that the judge’s direction on conspiracy had been flawed because he had failed to direct that the prosecution had to prove that each defendant had known that the Kashmir operation involved cannabis and the Thailand operation involved heroin
- appeal dismissed - judge made it clear that the prosecution had to prove that Ds conspired to import the specific prohibited drugs (no misdirection)
- O’Connor LJ - ‘Participation in a conspiracy is infinitely variable: it can be active or passive.’ - consent is proven by knowing what was going on and failing to stop the unlawful activity -
“The mens rea sufficient to support the commission of a substantive offence will not necessarily be sufficient to support a charge of conspiracy to commit that offence. An intent to cause grievous bodily harm is sufficient to support the charge of murder, but is not sufficient to support a charge of conspiracy to murder or of attempt to murder.” - liability for conspiracy is limited to the intended consequences of D’s actions
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R v Yip [1995] 1 AC 111
- The parties to a conspiracy must intend that the agreement be carried out- overruled Anderson
- D met with an undercover US agent (N) and arranged for N to import heroin into Australia, but N missed the flight - charged with conspiracy to traffic a dangerous drug
- D appealed on the grounds that N could not be a co-conspirator because he lacked the necessary mens rea by acting with no criminal intent
- appeal dismissed - N could be a co-conspirator
- Lord Griffiths - “it is the intention to carry out the crime that constitutes the necessary mens rea for the offence. As Lord Bridge pointed out, an undercover agent who has no intention of committing the crime lacks the necessary mens rea to be a conspirator” - however, N did have the intention of moving the drugs, even though it was with the motive of breaking a drug ring - fact that authorities would not prosecute N does not mean that he did not commit the crime (albeit as part of a wider scheme to combat drug dealing)
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R v Saik [2006] Crim LR 998
- conspirators must have knowledge of circumstances necessary for the commission of the substantive offence, even when the substantive offence does not require it
- D (who operated a money changer) charged with conspiracy to launder money - the substantive offence of money laundering requires a reasonable suspicion that the property dealt with are the proceeds of crime
- appealed on the basis that, in contrast to the substantive offence, D must have intended or known that the funds involved in a transaction to be the proceeds of crime in order to have conspired to money launder
- appeal allowed – D lacked the requisite knowledge that the funds were the proceeds of crime to be guilty of conspiracy
Lord Nicholls:
- 3 mental elements to conspiracy: mental element involved making an agreement, intention to pursue a course of conduct which will necessarily involve commission of the crime in question by one or more of the conspirators and intention or knowledge that a fact or circumstance necessary for the commission of the substantive offence will exist
- 3rd mental element “subsumes any lesser mental element, such as suspicion, required by the substantive offence in respect of a material fact or circumstances”- “The rationale underlying this approach is that conspiracy imposes criminal liability on the basis of a person’s intention. This is a different harm from the commission of the substantive offence. So it is right that the intention which is being criminalised in the offence of conspiracy should itself be blameworthy. This should be so, irrespective of the provisions of the substantive offence in that regard.”
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R v Bourne (1952) 36 Cr App R 125
- an accessory can be liable for the full offence even when the principal offender has the defence of duress
- D sexually excited his dog and forced his wife to engage in bestiality with it - charged with aiding, abetting, counselling and procuring buggery even though his wife could not be convicted because she acted under D’s coercion
- conviction held
- suggested that because duress is an excuse offence it doesn't remove the unlawfulness of the act, only her culpability - implies that justification defences eg self-defence can benefit secondary parties, but excuses cannot
