Criminal Law 2

Illegal drugs in the complainant's possessions can be property for the purpose of TA 1968.

Things in action can be property for the purpose of TA 1968.

In this case it was confirmed that a company accountant had assumed the right of the legal owner of a bank account (ie appropriated it) by drawing, presenting and negotiating cheques. The account is a thing in action which is property.

Confidential information was not property within the meaning of TA 1968.

In this case a student 'borrowed' a test paper from an examination office. He did not intend to permanently deprive the university of the piece of paper- the only thing he could have stolen was the information itself, but this argument failed.

Electricity cannot be stolen as it is not property. Section 13 TA 1968 deals with unlawful extraction of electricity.

D need only assume one of the rights of the legal owner (not all of them) to appropriate property.

In this case D switched the labels on items in a supermarket thus assuming one of the rights of the owner (the supermarket).

Consent is not relevant to the question of appropriation. Thus, even if property passes with consent of the legal owner, there can still be an appropriation for the purposes of TA 1968.

Following Gomez, receipt of a gift that amounted to a valid transfer at civil law could still amount to theft if it was dishonestly induced by D.

D had not appropriated property when he duped a family member into signing a letter that enabled a house to be vested in his name.

'Appropriation' connoted a physical act on the part of D rather than a more remote action that had triggered the payment in question.

Once D had stolen property (ie appropriated it with full MR), a later assumption of rights by him will not amount to another theft of the property.

However, the theft may be considered a continuous one. The jury will be asked to considered when the appropriation ended, whether it was instantaneous or continuous while 'on the job'.

If you appropriate property of which another has a lien, you appropriate property 'belonging to another' for the sake of TA 1968.

In this case, a garage had a lien over D's car so it was unlawful for him to seek to retain possession of it.

Theft; does the property 'belong to another'? Did the property belong to another at the time of dishonest appropriation?

The defendant went to a petrol station and filled up with petrol. He then asked the attendant to put oil and water in the car. Whilst the attendant washed his hands the defendant drove off without paying.

• Held:
• His actions did not amount to theft as in contract law the property in the petrol passed to the defendant when it was put into his petrol tank. At the time of forming the dishonest intention not to pay for the petrol, it already belonged to him.

If he had gone into the petrol station intending not to pay, he would have had the MR at the time the AR was carried out. As it was, the AR preceded the MR. There was no theft.

Instead, it was a case of making off without payment.

Theft; does the property 'belong to another'? Was D under a legal obligation to deal with the property in a certain way?

Section 5(3) of the TA 1968 states:

Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other.

If s 5(3) applies then, contrary to the normal rule that ownership of cash passes when it is handed over, ownership of the property will remain with the person who hands it over (thus making it possible to establish a coincidence of all five elements of theft).

Theft; does the property 'belong to another'? Was D under a legal obligation to deal with the property in a certain way- s5(3)

In order for s 5(3) to apply, the accused must be under a legal obligation, not just a moral one. If the accused is under no such legal obligation and he can lawfully do what he likes with the property, it does not belong to another and therefore cannot be stolen.

Here, the defendant had applied for and received Housing Benefit. He received £479 but paid only £200 to his landlord even though his rent arrears amounted to more than £800. He spent the rest of the money on himself. He was charged with theft but the Divisional Court held he was not guilty. Huskinson had ownership, possession and control of the money, and therefore the only way the money could belong to another was if s 5(3) applied.

The court held that it did not as there was no legal obligation to deal with the money in a particular way. There was nothing in the Social Security regulations to say that he must spend the Housing Benefit money on rent and therefore s 5(3) of the TA 1968 did not apply.

Theft; does the property 'belong to another'? Was D under a legal obligation to deal with the property in a certain way- s5(3); when is there a legal obligation?

This case provides a useful insight into this issue. Here, the defendant was in business as a travel agent. He received money from various clients to pay for flights, and paid the money into his general business account. The flights were not booked and no money was refunded. Clearly the defendant had breached his contractual obligation to his clients, but had he committed theft?

The Court of Appeal decided that he had not. Although the defendant was under a contractual duty to buy his clients their tickets in due course, he was not obliged to use the money that they specifically had given him, or its proceeds, for that purpose. He was therefore not under an obligation to deal with the property or its proceeds in a particular way and s 5(3) did not apply.

An understanding that the funds would ultimately be used for the purpose requested will not be enough.


NB- The Criminal Law Review Committee gave an example of a treasurer of a holiday fund who misapplies the fund or its proceeds. There appears to have been an obligation to keep the money or its proceeds in a separate fund.

Because the Act refers to ‘or its proceeds’ you would not be obliged to keep separate the exact same notes and coins that you had been given as long as the understanding was that an equivalent sum would be kept separate. The legal obligation that you are then under has to be to use that fund for the particular purpose.

Theft; does the property 'belong to another'? D's own bank account (overdrawn)

The defendant knew his bank account was overdrawn but continued to use his bank card to support cheques. He was charged with theft from the bank.

It was held that the defendant was not guilty as he had dealt only with his own account, so he had not assumed the rights of an owner over someone else’s thing in action.

Theft; was the property appropriated 'dishonestly'?

Section 2(1) of the Theft Act 1968 provides:

(1) A person’s appropriation of property belonging to another is not to be regarded as dishonest—

(a)  if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or

(b)  if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or

(c)  (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

- This would apply for someone who legitimately finds abandoned property until the point they discover the owner can be found, in which case this would no longer apply (ie he would be dishonest). Also, following s3(1), keeping it would be an appropriation.

Theft; was the property appropriated 'dishonestly'?

Section 2(2) of the TA 1968 provides:

A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.

Theft; was property appropriated dishonestly? Where D believes he was honest.

If the jury needs directing on whether D was dishonest (eg because they did not believe what they did was morally wrong)

• 1) Objective test
• The jury were first to ask themselves whether what was done was dishonest according to the ordinary standards of reasonable and honest people.

If the answer was no, the defendant was not guilty.

• 2) Subjective test
• If the answer was yes, the jury should then ask themselves whether the defendant realised that reasonable and honest people would regard what he did as dishonest. If yes, he is guilty; if no, he is not.

Theft; 'intention to permanently deprive'?; did D intend to replace the property?

This case confirmed that if you take money from someone (in this case an employer) intending to repay it, there definitely is an intention permanently to deprive.

You always intended to deprive the owner of the particular notes and coins that you took.

The fact that you intended to pay the owner back an equivalent sum is relevant only to the question of dishonesty.

(Therefore, unless someone intends to return the exact same item in the same condition, there will be ITPD)

Theft; 'intention to permanently deprive'?

s 6(1) of the TA 1968 states:

A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

Theft; 'intention to permanently deprive'?; application of s6(1)

Section 6(1) does not apply to all ‘borrowing’ cases and should only be used in exceptional situations.

A borrowing which is not equivalent to an outright taking cannot be theft, whatever economic losses fl ow to the victim.

In this case the defendant was a projectionist in a cinema. He removed films to make ‘pirate’ copies and then returned the films to the cinema within a few hours.

The Court of Appeal held that ‘a mere borrowing is never enough to constitute the necessary guilty mind unless the intention is to return the “thing” in such a changed state that it can be truly said that all its goodness and virtue has gone.’

In this case, the Court felt that the goodness and practical value of the fims had not gone as they could still be projected to paying audiences.

Consequently, the borrowing was not equivalent to an outright taking or disposal under s 6(1).

Theft; 'intention to permanently deprive'?; application of s6(1)- selling the property back to original owner

One of the sort of case s 6(1) was aimed at, according to the courts, is where a defendant took items and then offered them back to the owner for the owner to buy.

• In the instant case, where the defendants had been charged with conspiracy to rob, having taken the victim's car by the use of force and
• then informing the victim that the car would be restored in return for 500, the defendant's conviction for that offence was not unsafe as the case fell within the limited interpretation in s6(1) of the where the defendant treated the thing as his own to dispose of regardless of the other's rights.

• Accordingly, there had been an intention permanently to deprive the victim of the car, and a necessary element of the offence of
• robbery had therefore been established.

Theft; 'intention to permanently deprive'?

Section 6(2) of the TA 1968 states:

Without prejudice to the generality of [s 6(1)] above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other’s authority) amounts to treating the property as his own to dispose of regardless of the other’s rights.

The clearest example of where this section applies is pawning. For example, if Jim takes Ira’s ring and pawns it, intending to redeem it in due course, s 6(2) clearly states that that would amount to an intention permanently to deprive. He would have parted with the property (the ring) under a condition as to its return (paying the money owed) which he may not be able to perform.

Fraud by false representation

Section 2:

(1)  A person is in breach of this section (and so guilty of an offence under section 1) if he—

(a) dishonestly makes a false representation, and  

(b) intends, by making the representation—

 (i) to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss.

Fraud by false representation; 'false' representation

Section 2(2) states that a representation is false (and D will therefore be guilty of an offence under s1 of the Act) if:

(a) it is untrue or misleading; and

(b) the person making it knows that it is, or might be, untrue or misleading.


So any representation made must be false. If a defendant says something that he believes to be false but it is in fact true, the actus reus will not be established.

Fraud by false representation; 'representation'

Under s 2(3) a ‘representation’ is any representation as to fact or law, including a representation as to the state of mind of—

• (a) the person making the representation, or
• (b) any other person.

Nb- representation may be express or implied- s2(4)

Fraud Act 2006; false representation (implied)

(under old law)

The defendant had ordered a meal in a restaurant and had consumed it with an honest state of mind. He then discovered that he was unable to pay for the meal and remained silent as to his change in circumstances. The defendant waited until the dining area was clear of waiters before running out.

• The House of Lords held that the defendant had exercised a deception by remaining seated in the restaurant having decided not to pay. His remaining in this position created the implied and continuing representation that he was an honest customer who intended to pay the bill, thus inducing the waiters to leave
• the dining area unattended, giving him the opportunity to run off without paying. His representation by conduct became false when he decided to not to pay.

Nb- If he suddenly realised that he didn't have enough money and immediately fled, there would not have been a false representation. It would just be making off without payment.

Fraud Act 2006; representation by credit card

The Explanatory Notes (Note 13) specifically refer to use of credit cards as payment as an example of a representation.

Again this mirrors the case law under the old legislation. In  R v Lambie, the defendant exceeded the limit on her credit card. She continued to use the card. The House of Lords held that she had falsely represented that she had authority to use the card by continuing to use it once she had exceeded her credit limit.

Fraud Act 2006; representations to machines

It does not matter if a representation is made to a machine (eg ATM).

s 2(5) of the Fraud Act 2006 states that ‘a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention)’.

Fraud Act 2006; 'intend to make a gain or cause a loss'

(2) ‘Gain’ and ‘loss’—  

(a) extend only to gain or loss in money or other property;

 (b) include any such gain or loss whether temporary or permanent;  and ‘property’ means any property whether real or personal (including things in action and other intangible property).

(3) ‘Gain’ includes a gain by keeping what one has, as well as a gain by getting what one does not have.

(4) ‘Loss’ includes a loss by not getting what one might get, as well as a loss by parting with what one has.

TA 1978; making off without payment

Section 3:

(1) Subject to subsection (3) below, a person who, knowing that payment on the spot for any goods supplied or services done is required or expected from him, dishonestly makes off without having paid as required or expected and with intent to avoid payment of the amount due shall be guilty of an offence.

TA 1978; s3(1) making off without payment; good or services provided illegally

s 3(3) of the TA 1978, states:

Subsection (1) above shall not apply where the supply of the goods or the doing of the service is contrary to law, or where the service done is such that payment is not legally enforceable

TA 1978; s3(1) making off without payment; payment expected on the spot

D will not be liable where he has (possibly by a false representation) obtained the agreement of the ‘victim’ that payment can be made in the future.

Here, the defendant left a hotel without paying his bill. His defence was that he had arranged with the manager of the hotel to pay when he could, and thus payment was not expected on the spot when he left.

The Court of Appeal agreed that this would amount to a defence to s 3. The agreement meant that payment was not expected on the spot.

The fact that the agreement was or may have been obtained dishonestly did not change that fact.

(Please note that a defendant may be liable for fraud by false representation under s 2 of the Fraud Act 2006 in this situation, but the Court of Appeal has made it clear that he would not be liable for an offence contrary to s 3.)

TA 1978; s3(1) making off without payment; intent to avoid payment (permanently)

What if someone leaves, intending to return later and pay? In other words, do you have to intend to avoid paying permanently?

The House of Lords considered this issue here. The defendant had stayed at a hotel and incurred a bill of £1,286.94. He left the hotel without paying, but subsequently explained that he was in financial difficulties and said that he genuinely hoped to be able to pay the bill. Nevertheless, he was arrested and charged with making off without payment, contrary to s 3 of the TA 1978.

His argument was that he had acted honestly and had genuinely expected to pay the bill from the proceeds of business ventures.

The House of Lords decided that the only correct way to construe s 3 was that the intention had to be to avoid payment permanently. Therefore, someone who makes off intending to return at a future date and pay cannot be liable for this offence.

Robbery

Section 8:

(1) A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.

Robbery s8(1) TA 1968; 'force'

In this case the two defendants had jostled the victim, making it difficult for him to keep his balance, and at the same time another man had taken the victim’s wallet. The defendants appealed against their conviction for robbery on the basis that the jostling could not, in law, amount to the use of ‘force’.

The Court of Appeal disagreed and upheld their convictions for robbery. In so doing, the Court held that ‘force’ is a word in ordinary use and a word which is understood by jurors. It confirmed that it was a matter for the jury in each case to determine whether force had been used (or threatened).

Robbery s8(1) TA 1968; does 'force' need to be direct?

What if the force is directed against the victim’s property instead? Will this still be sufficient for a charge of robbery instead of theft?

This question was answered in the affirmative here. In this case the defendant approached the victim from behind and wrenched her basket out of her hands.

The Court of Appeal confirmed that whether the defendant used force on any person in order to steal is an issue that should be left to the jury.

There was no distinction between applying force to the person or to his or her property.

Robbery s8(1) TA 1968; 'immediately before or at the time' of stealing

The Court of Appeal held that the issue to be determined was whether the appropriation was still continuing at the time the force was used.

If the appropriation was a continuing one at that point, the force had been used at the time of the theft and the defendants could be guilty of robbery.

Eveleigh LJ made it clear that the question of whether the appropriation was still continuing was a question to be determined by the jury.

Burglary

Section 9:

(1)  A person is guilty of burglary if–

(a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or

(b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.

(2) The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm therein, and of doing unlawful damage to the building or anything therein.

Burglary s9(1) TA 1968; effective entry

T defendant leant in through a shop window for the purpose of stealing items from within the shop. He was convicted of burglary but argued on appeal to the Court of Appeal that he was not guilty as his whole body had not entered the building, the lower half of his body having stayed outside the shop. 

The Court of Appeal rejected his argument and upheld his conviction. The Court confirmed that there must be an ‘effective’ entry for the purpose of burglary, but whether there had been such an entry was a question of fact for the jury.

Burglary s9(1) TA 1968; effective entry

The the defendant was convicted of burglary after being discovered by an elderly householder, firmly stuck with his head and arm inside a window. He was convicted of burglary but appealed, arguing that he had not effectively entered the property as he was incapable of stealing anything as he was stuck.

The Court of Appeal rejected his arguments and upheld his conviction, finding that entry of some part of the defendant’s body into the premises could amount to an effective entry: the fact that, at that point, the defendant was incapable of committing any crime such as theft was irrelevant.

The Court did not say that entry of any part of the defendant’s body into the premises would always amount to an entry: it simply confirmed that it could do so (it is a question for the jury).

Burglary s9(1) TA 1968; did D enter as a trespasser?

Under the current law there is no authority for this point but under the old law the courts held that permission to enter obtained by fraud was not a true permission.

Burglary s9(1) TA 1968; did D enter as a trespasser?

• The two appellants went to the home of
• one of their parents and stole two television sets. The father gave evidence stating that his son had permission to be in his house.

The defendant Smith clearly had permission to enter his father’s home: the task of the Court of Appeal was to decide whether he could be a trespasser in his father’s home, as he had entered in excess of the permission given (ie he had entered to steal, which was presumably not within his father’s contemplation when he gave him permission to enter!).

If Smith was not a trespasser, he could not be guilty of burglary, therefore the issue was an important one.

The Court of Appeal referred to the case of  R v Collins and concluded that a defendant could be a trespasser where he had permission to enter for lawful purposes and he entered for an unlawful purpose (in this case to steal), and he knew or was reckless that he was exceeding the terms of the permission given.

Burglary s9(1) TA 1968; did D enter as a trespasser?; MR of trespass

The Court confirmed that the MR for entry as a trespasser under s 9(1)(a) burglary was that at the time of entry into the building the defendant must either know he was entering as a trespasser, or be reckless as to whether he was  a trespasser or not.

• Recklessness here would require the defendant to foresee the risk that he does not have permission to enter and go on, without justification, to take that risk. If, therefore, the defendant trespasses ‘by accident’, he will not satisfy the trespass element required for a charge of burglary.
• 
  

Burglary s9(1) TA 1968; 'building'

Section 9:

(4) References in subsections (1) and (2) above to a building, and the reference in subsection (3) above to a building which is a dwelling, shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is.

Burglary s9(1) TA 1968; 'part of the building'

The defendant was convicted of burglary when he went around a three-sided counter in a shop to get to the till. The defendant appealed, arguing that he had not entered ‘a part’ of the building as a trespasser: he had permission to be on the shop floor and the till area was part of that shop floor area.

The Court of Appeal rejected his argument, holding that the till area was a separate part of the building which the defendant had entered as a trespasser.

Geoffrey-Lane LJ said that there was a physical demarcation suggesting that the public were excluded from this area. He confirmed that whether an area was excluded from the public was a question for the jury to decide, but in this case there was ample evidence (presumably due to the presence of the counter) to enable the jury to decide:

‘(a) that the management had impliedly prohibited customers entering that area and

(b) that this particular defendant knew of that prohibition’.

Whether the defendant has entered a part of a building is therefore a question of fact for the jury.

If  Walkington is followed, it is likely that going beyond areas which are roped off, or marked by a counter or similar structure, will amount to entering a separate part of a building; and if the defendant knows or is reckless to the fact that he may not have permission to be in that area, he will be a trespasser in that part of the building for the purpose of burglary.

Burglary s9(1) TA 1968; conditional intent

the Court of Appeal confirmed that, where the defendants had entered properties looking for money to steal, a conditional intent to steal was sufficient.

It was no defence for the defendants to argue that their intent to steal was conditional on there being anything worth stealing in the property: such an intent (to steal if they could) was sufficient to establish mens rea on a charge of burglary.

s 8 of the Accessories and Abettors Act 1861 provides that:

‘whosoever shall aid (give assistance), abet (give encouragement at the time of the offence), counsel (give encouragement before the crime is committed) or procure (bring about) the commission of any indictable offence ... shall be tried, indicted and punished as a principal offender’.

s8 Accessories and Abettors Act 1861; presence at the scene of a crime

Mere presence at the scene of a crime is not, in itself, sufficient to amount to the actus reus of being an accomplice.

It would appear, therefore, that in order to be liable as an accomplice due to one’s presence at the scene of a crime, it must be established that the alleged accomplice was present by prior arrangement with the principal, or that the alleged accomplice actually encouraged or assisted the principal (by words and/or actions) at the scene of the crime.

s8 Accessories and Abettors Act 1861; presence at the scene of a crime and communication with primary offender

• Aiding and abetting can be found through the mere encouragement of criminal activity. The encouragement does not have to be directly
• communicated to the person committing the criminal offense.
• The defendant was accused of being an accomplice to an illegal performance by an American musician. The defendant was found to have encouraged the commission of the offence as he had met the musician at the airport, bought a ticket for the concert and attended the performance.

It would appear, therefore, that paying to attend an illegal event could amount to encouragement of the crime and so establish the actus reus of accomplice liability.

s8 Accessories and Abettors Act 1861; encouragement where there is a duty to control

In this case, the police were unable to determine whether the defendant had been the driver of, or a passenger in, a speeding vehicle. There was no dispute that the car belonged to the defendant. Despite the uncertainty as to the defendant’s role in the offence, the defendant was convicted of what would now be the offence of dangerous driving.

The court held that he was either the principal offender (the driver) or an accomplice, in that he had encouraged the commission of the offence by failing to control the actions of the driver when he had a duty to do so as the car was his.

We have already seen that accomplices are treated in the same way as principal offenders as far as trial and sentence are concerned. Therefore, the fact that the court could not determine whether the defendant was a principal offender or an accomplice did not matter as long as it could be proved that he was one or the other, ie that he was in the car.

s8 Accessories and Abettors Act 1861; encouragement where there is a duty to control

Following Du Cros v Lambourne, remaining silent, or failing to intervene at the scene of a crime where there is a right or a duty to act to control the actions of the principal offender, can therefore amount to encouragement of the offence and lead to accomplice liability.

This was confirmed here where the licensee of a public house, who allowed his customers to drink after hours, was held to be an accomplice to the offence of drinking after hours as he had the right (or a duty) to stop them and his failure to do so (by his inactivity) amounted to encouragement.

s8 Accessories and Abettors Act 1861; encouragement where there is a duty to control

The failure of one parent to intervene to protect his child from ill-treatment by the other parent amounted to encouragement of the offence and led to accomplice liability. The passive parent was under a duty to act to protect his child. His failure to do so amounted to encouragement

s8 Accessories and Abettors Act 1861; Link between principal and accomplice

Lord Widgery CJ expressly confirmed that there was no need for a mental link (ie any contact) between principal and accomplice where it was alleged that the accomplice had procured the commission of the offence.

He said that procuring meant ‘producing by endeavour’, ie setting out to ensure that something (in this case a crime) happens and taking the appropriate steps to achieve that happening.

Lord Widgery CJ said that, in the view of the Court of Appeal, there were ‘plenty of instances in which a person may be said to procure the commission of a crime . . . even though there is no attempt at agreement or discussion’.

In cases where it is alleged that the accomplice procured the commission of the offence, therefore, there is no need to establish that there was any contact between the principal and the accomplice.

Nb- aiding may also be possible without a mental connection (eg tripping a police officer who tries to arrest a criminal where the principal is unaware)

However, abetting and counseling (encouragement or advice) probably does require a degree of a mental connection

s8 Accessories and Abettors Act 1861; Causal link between principal and accomplice

The need for a causal link appears to be restricted to cases where the alleged accomplice has acted in order to bring about the crime, ie where he has procured it. 

In this case, it was confirmed that there is no need for a causal link in cases where the allegation is that the accomplice counselled the principal. Here, the defendant hired a man to kill her love rival. The ‘hit man’ claimed he had no intention of killing the woman but went along to the house to make it look as if he intended to kill her. At the house, the intended victim screamed, the ‘hit man’ went berserk and he killed her. 

The Court of Appeal affirmed the defendant's conviction. It was held that the offence of counselling a person to commit an offence is made out if it is proved that there was a counselling, that the principal offence was committed by the person counselled and that the person counselled was acting within the scope of his authority and not accidentally when his mind did not go with his actions. It is not necessary to show that the counselling was a substantial cause of the commission of the offence.

s8 Accessories and Abettors Act 1861; AR of principle offence

The need for the actus reus of a crime to be committed by a principal offender was confirmed.

Here, the defendant was charged as an accomplice to a charge of unlawful dangerous act (‘constructive’) manslaughter. The victim had injected himself with drugs supplied by the defendant and died.

The Court of Appeal held that the defendant could not be an accomplice as the victim had committed no unlawful act by injecting himself with drugs.

s8 Accessories and Abettors Act 1861; AR of principle offence (but principal offender lacks MR) principal or secondary?

The Court of Appeal upheld L’s conviction as an accomplice to rape on the basis that he had procured the commission of the offence by acting to ensure that C had sexual intercourse with L’s wife without her consent.

In the view of the Court of Appeal, the fact that C was acquitted of the principal offence (due to his belief in L’s wife’s consent) did not prevent L being convicted as an accomplice.

The actus reus of rape had been committed by C – he had had sexual intercourse with L’s wife without her consent – and there was therefore no bar to upholding the conviction of L as an accomplice to that offence.

• This could be seen as the secondary offender using the principal as an innocent agent.
• (However, in most cases involving an innocent agent, accomplice will be charged as the principal offender)

s8 Accessories and Abettors Act 1861; AR of principle offence (but principal offender lacks MR)- principal or secondary?

the defendant forced his wife to commit an act of buggery with a dog. The wife was found not guilty of the offence as she successfully raised the defence of duress (outside the scope of this Manual).

The defendant would usually be charged as the principal offender acting through an innocent agent, but in this case he was charged as an accomplice, the allegation being that he had procured an  innocent agent (his wife) to commit the offence.

s8 Accessories and Abettors Act 1861; MR of an accomplice

This case involved a defendant accused of being an accomplice to an offence of driving an overloaded vehicle on a public road. A lorry filled with coal was driven onto a weigh-bridge, where the operator of the weigh-bridge (an employee of the National Coal Board) weighed the lorry and told the driver that the load was nearly four tons overweight.

The driver said that he would risk taking the overload, so the operator gave him a weigh-bridge ticket which allowed him to leave the colliery. The driver was later stopped by the police, and his firm was convicted of contravening the Motor Vehicles (Construction and Use) Regulations 1955.

The National Coal Board was charged with aiding and abetting the firm in the commission of the offence. The defendant claimed that he had not wanted this offence to happen, but Devlin J stated that there were two elements to the mens rea of an accomplice:

(a) an intention to aid (proved by a positive act of assistance voluntarily done); and

(b) knowledge of the circumstances.

Devlin J confirmed that the fact that the defendant may not have wanted or intended the offence to occur, or that he may not have intended to assist in the commission of the offence, was immaterial to his liability: ‘... an indifference to the result of a crime does not of itself negative abetting’.

The majority view of the court therefore was that the mens rea of accomplice liability was established if the defendant (with knowledge of the circumstances) deliberately (rather than accidentally) did an act (or spoke words, etc) which amounted to encouragement, etc.

The fact that the defendant might not have wanted (or intended) to assist in the commission of the offence was irrelevant.

s8 Accessories and Abettors Act 1861; MR of an accomplice; contractual obligation

In this case the defendant purchased an antique glass goblet on behalf of a client. The client paid the defendant for the goblet and the defendant handed it over, knowing that the client was going to attempt to export it without the required licence (an offence at that time under the Customs and Excise Act 1952). The defendant argued that he should not be liable as an accomplice to this offence, as in handing over the goblet he was merely fulfilling a binding contractual obligation and a refusal to comply would render him in breach of contract.

However, it was found that criminal law will take precedence over the civil law, and a defendant should refuse to comply with his contractual obligation if he knows that in doing so he would be assisting a crime. The civil obligation could not be enforced against him in these circumstances.

s8 Accessories and Abettors Act 1861; MR of an accomplice; 'knowledge of the circumstances'

Lord Goddard CJ stated that for a person to be convicted of aiding and abetting a crime, it must be shown that he knew ‘the essential matters which constitute that offence’.

He went on to say that the defendant did not have to know that a crime had been committed ‘because he may not know that the facts constitute an offence and ignorance of the law is not a defence’.

s8 Accessories and Abettors Act 1861; MR of an accomplice; strict liability of principle

As far as the accomplice is concerned, it is necessary to establish mens rea even in cases where the accused faces a charge of being an accomplice to a crime of strict liability.

Here a shopkeeper was convicted of a strict liability offence of selling meat unfit for human consumption. The shopkeeper had, before selling the meat, had it checked by a vet, who gave him a certificate allowing him to sell the meat.

The vet, however, was acquitted of the charge of aiding and abetting this offence, as he did not know and had not contemplated that the meat was unfit to eat. He had been negligent in his job: he should have realised it but did not. He did not therefore have within his contemplation all the circumstances of the offence, and thus lacked the mens rea of accomplice liability.

s8 Accessories and Abettors Act 1861; MR of an accomplice; Johnson v Youden- contemplation of 'essential elements that constitute the offence'

The defendant was convicted of being an accomplice to breaking into a bank. He had supplied oxygen cutting equipment, used by the principal offenders to break in. Although he did not know the exact details of the crime to be committed, he did know that the equipment was to be used for breaking into some sort of premises.

The Court of Appeal said that the accomplice must know that a ‘crime of the type in question was intended’.  As long as the type of crime is known, for example that a burglary is to occur, the defendant need not know the exact details such as the time and location of the planned offence.

In Bainbridge, however, the Court of Appeal confirmed that although the detail need not be known by the accomplice, an awareness that the principal was going to commit some form of illegal act was insufficient to establish the mens rea of accomplice liability. The accomplice must have a specific type of offence (eg theft) within his contemplation.

s8 Accessories and Abettors Act 1861; MR of an accomplice; Johnson v Youden- contemplation of 'essential elements that constitute the offence'

The defendant acted as a guide for other members of the Ulster Volunteer Force (‘UVF’), showing them the way to a particular pub where the principal offenders threw in a pipe bomb. He was charged with aiding and abetting this offence. He argued that he did not know exactly what the principal offenders were going to do, and thus did not have the mens rea necessary to be convicted as an accomplice.

His appeal was dismissed on the basis that the defendant, being a member of an organisation that carried out armed attacks on persons or property, knew when he acted as a guide that he was taking part in an attack either on the pub or on the people therein, and that the weapon or weapons to be used must have been in the car he was guiding.

As Lord Parker said, ‘He knew that a “military” operation was to take place. With his knowledge of the UVF’s activities, he must have known that it would involve the use of a bomb or shooting or the use of incendiary devices. Knowing that, he led them there and so he aided and abetted whichever of these forms the attack took. It took the form of placing a bomb’. Therefore the defendant knew the essential matters constituting the offences, and he had been rightly convicted of being an accomplice to both unlawfully and maliciously doing an act with intent to cause an explosion and being in possession of a bomb.

In Maxwell the House of Lords went further than the Court of Appeal in Bainbridge and found that if a defendant, charged as an accomplice, had a range of offences within his contemplation, he was liable for whichever of those offences the principal chose to commit.

s8 Accessories and Abettors Act 1861; MR of an accomplice; accomplice has higher MR than principal

If the accomplice had a higher mens rea than the principal, it is possible for the accomplice to face a more serious charge than that of the principal as long as the actus reus of the offence is committed.

There appears, therefore, following Howe, to be no reason why an accomplice should not be guilty of murder if he intended death or grievous bodily harm, or had death or grievous bodily harm within his contemplation, even if the principal is only guilty of manslaughter (the actus reus being the same).

Similarly, there is no reason why an accomplice should not be liable under s 18 of the OAPA 1861 if he intended grievous bodily harm or had grievous bodily harm within his contemplation, even if the principal is only guilty of a s 20 offence (again the actus reus is the same).

s8 Accessories and Abettors Act 1861; MR of an accomplice; principal exceeded the scope of the plan

Lord Lane confirmed that even if there was no agreement between the parties (express or tacit), if a person went along with a venture realising that the principal might commit a particular offence, that person was guilty as an accomplice as he had ‘lent himself to the enterprise and by so doing he has given assistance and encouragement’.

The position following these decisions therefore is that, if the accomplice realises the principal might commit a certain offence and that the principal offender might have the requisite mens rea for that offence, ie if the accomplice foresees such matters as a possibility, the accomplice is liable if such an offence is committed, even though he may not have agreed to its commission and even though he might have hoped that it would not happen.

It follows, therefore, that if the accomplice did not foresee such matters as a possibility, ie if the thought that such an offence might be committed never crossed his mind, he is not guilty if the principal deliberately goes beyond the scope of the plan.

s8 Accessories and Abettors Act 1861; MR of an accomplice; unexpected consequences

Lord Widgery confirmed that all ‘co-adventurers’, ie principal and accomplice, were liable for the unexpected consequences of carrying out a plan (here carrying out a robbery where the jeweler had a heart attack)

However, where the principal offender has deliberately gone beyond the scope of a joint plan, the other parties to that plan have no liability in relation to the unauthorised act.

They have not contemplated the essential elements of the crime committed.

s8 Accessories and Abettors Act 1861; MR of an accomplice; one 'co-adventurer' had higher MR (but both anticipated same act)

A petrol bomb was thrown through the window of a house, causing the deaths of three children. Gilmour was charged as an accomplice to murder, having driven the principal offenders to the property. There was evidence that Gilmour had been aware of the plan (to throw a petrol bomb into the house) but that he had not been aware that the principal offenders intended to cause grievous bodily harm. The defendant was convicted as an accomplice and appealed.

The Court of Appeal in Northern Ireland said that where a principal offender carried out the deed contemplated by both principal and accomplice, there was no reason why the accomplice should not be guilty of the ‘degree of offence appropriate to the intent with which he acted’.  Gilmour could therefore be guilty as an accomplice to manslaughter

s8 Accessories and Abettors Act 1861; MR of an accomplice; Principal departed from the plan

• R v Powell
• With the exception of the scenario considered in  Gilmour, generally in murder cases, the position is that if the principal (P) departs from the plan, the accomplice (A) will have no liability for the outcome (death) unless A foresaw that P might intentionally kill (or intentionally cause grievous bodily harm) in the course of their joint enterprise.

• R v English
• The qualification to this rule. The House of Lords said that if A foresaw that P might intentionally cause grievous bodily harm (but not that P might intentionally kill) and P caused the grievous bodily harm in a way fundamentally different from that foreseen by A (eg by using a more dangerous weapon), A will have no liability for the outcome, ie he will not be guilty of murder or manslaughter

s8 Accessories and Abettors Act 1861; MR of an accomplice; Principal departed from the plan; R v English- fundamentally different rule

According to the majority view, a defendant could rely on the ‘fundamentally different’ qualification to avoid accomplice liability even if the defendant foresaw that the principal might intentionally kill. (In R v English the qualification was held to be available only to a defendant who foresaw that the principal might intentionally cause GBH, but not where he foresaw that the defendant might intentionally kill.)

• s8 Accessories and Abettors Act 1861; MR of an accomplice; Principal departed from the plan; R v English- fundamentally different rule
•  In this case three defendants appealed against their convictions for manslaughter on the basis that although they knew one of their gang was armed with a Stanley knife, a different kind of knife (of which they were unaware) had been used to kill the victim. They submitted that the unforeseen use of this knife took the killing outside the scope of the joint enterprise, as the kind of stab administered by the principal offender was of a fundamentally different character from the injury they had intended or foreseen by the use of the Stanley knife.

The Court of Appeal dismissed the appeals. The difference between the infl iction of death or serious injury by means of a Stanley knife and by means of a knife of the kind used on the victim was not of itself enough to enable the factual issue of fundamental difference to be left to the jury. The two types of knife were not, as a matter of law, ‘fundamentally different’ from each other and the convictions were safe.

s8 Accessories and Abettors Act 1861; withdrawal from the plan

The court was of the opinion that the action necessary to ‘break the chain of causation and responsibility’, ie to ensure that the accomplice had effectively withdrawn from the plan so as to avoid liability, depended ‘upon the circumstances of each case’. However, he went on to say that there was one essential element to an effective withdrawal:

Where practicable and reasonable there must be timely communication of the intention to abandon the common purpose ... What is ‘timely communication’ must be determined by the facts of each case but where practicable and reasonable it ought to be such communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw.

In  R v Becerra, the words ‘come on, let’s go’ followed by the accomplice’s act of going through the window were not sufficient to amount to an effective withdrawal. The court was of the view that more was needed, but did not clarify what further action would be required.

Roskill LJ seemed to be of the view that there would be a stage at which nothing less than physical intervention to prevent the crime would suffice but declined to say when that was necessary.

s8 Accessories and Abettors Act 1861; withdrawal from the plan

Words alone may suffice where the withdrawal takes place before the crime occurs.

• Here, an alleged accomplice who provided information to a principal and then spent two weeks trying to persuade him not to commit the crime was ruled by the trial judge not to have effectively withdrawn from the plan. On appeal, the Court of Appeal said that his defence of withdrawal should have been left to the jury, ie it was a matter of fact for them to decide.

s8 Accessories and Abettors Act 1861; The rule in R v Tyrell

The conviction of Tyrrell as an accomplice to a sexual offence committed against herself was quashed as the offence committed by the principal offender (engaging in sexual intercourse with a girl under the age of consent) was designed to protect her (ie designed to protect girls under the age of 16).

Lord Coleridge CJ was of the opinion that it had never been the intention of Parliament to punish the girls for whose protection the law was passed.

It is important to note, however, that in  Tyrrell, Lord Coleridge CJ said that it had not been the intention of Parliament to punish such girls ‘for the offences committed upon themselves’. The rule in  Tyrrell’s case protects only the ‘victim’ of the offence. It does not protect any other young girl charged as an accomplice.

s1(1) Criminal Attempts Act 1981

Section 1

(1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.

s1(1) Criminal Attempts Act 1981; 'more than merely preparatory'

• 1. Buys a shotgun and ammunition.
• 2. Shortens the barrel of the shotgun and loads it.
• 3. Waits for Michael at some school gates, knowing that Michael will shortly be arriving by car to drop off his daughter for school.
• 4.  Jumps into the car when the daughter gets out.
• 5.  Points the loaded gun at Michael.
• 6.  Releases the safety catch on the gun and puts his finger on the trigger.

Here, the Court of Appeal held that there was sufficient evidence to go to the jury to decide on whether there was an act that was more than merely preparatory to the  commission of the offence at point 5 above.

s1(1) Criminal Attempts Act 1981; MR of attempt

If you are dealing with a result crime you must intend the prohibited result even if a ‘lesser’ mens rea would suffice for the full offence.

Here, the defendant wired up a soap dish to the electricity supply in order to electrocute and kill his wife. At his trial the judge directed the jury that an intention to kill or cause grievous bodily harm would suffice on a charge of attempted murder.

On appeal, the Court of Appeal said that this was a misdirection and that only an intention to kill would suffice for attempted murder.

s1(1) Criminal Attempts Act 1981; MR of attempt

The Court of Appeal confirmed that only an intention to commit the offence was adequate, and therefore only an intention to cause criminal damage would suffice for a charge of attempted criminal damage, even though recklessness is an adequate mens rea for the full offence.

s1(1) Criminal Attempts Act 1981; MR of attempt (ulterior intent)- criminal damage

Here it was held that on a charge of attempted aggravated criminal damage, the defendant must intend to damage property (ie he must intend the consequence forming the actus reus of the offence), but he can be reckless as to whether life is endangered because this is an issue of ulterior mens rea.

There is no need for life to be endangered to establish the actus reus of the full offence and so recklessness will suffice as to this element of mens rea in an attempted offence.

s1(1) Criminal Attempts Act 1981; MR of attempt- rape

Court of Appeal decided that the defendant must intend sexual intercourse either knowing of the lack of consent, or being reckless as to the other’s consent. This was the same as for the full offence of rape at that time (no case law for new Sexual Offences Act)

The Court’s reasoning behind its decision was that the only difference between the two offences of rape and attempted rape is that in rape sexual intercourse takes place, whereas in attempted rape it does not, although there has to be some act which is more than merely preparatory to sexual intercourse. Therefore the attempt relates to the physical activity (ie the sexual intercourse); the mental state remains the same. The intention required by s 1(1) of the Criminal Attempts Act 1981 means the intention to do the prohibited act – in this case sexual intercourse. The defendant commits the offence because of the circumstances in which he manifests that intent, ie when the ‘victim’ is not consenting and he knows or is reckless about the absence of consent. That was the same for attempted rape.

s1(1) Criminal Attempts Act 1981; impossibility defence

Section 1(2) of the Criminal Attempts Act 1981 states:

A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.

If a crime is impossible to commit, what of the mens rea requirements of the offence?

Section 1(3) of the Criminal Attempts Act 1981 states:

(3) In any case where—

(a)  apart from this subsection a person’s intention would not be regarded as having amounted to an intent to commit an offence; but

(b) if the facts of the case had been as he believed them to be, his intention would be so regarded,  then, for the purposes of subsection (1) above, he shall be regarded  as having had an intent to commit that offence.

In effect, this means that the defendant will be deemed to have the intent to commit a crime if, on the facts which he believed to be true, he would have had such intent. Essentially, impossibility does not prevent the establishment of the mens rea of attempt.

s1(1) Criminal Attempts Act 1981; impossibility defence- s1(2)and(3)

The defendant was arrested carrying a package from India which he believed to contain either heroin or cannabis. In fact, the substance was harmless and not an illegal drug at all. It was held by the House of Lords that he was guilty of attempting to be knowingly concerned in dealing with or harbouring a controlled drug, even though that was impossible on the facts as the substance was harmless.

The defendant in  Shivpuri committed the actus reus as he did an act (bringing the parcel into the country) which was more than merely preparatory to the commission of the offence.

Under s 1(2) of the Criminal Attempts Act 1981, the fact that the commission of the offence was impossible did not prevent the establishment of the actus reus of attempt. Similarly, Mr Shivpuri (and Karen) had the necessary intent required to establish the charge of attempt as, if the facts had been as he believed (ie if the parcel had contained illegal drugs), the requisite intent (to deal with or harbour a controlled drug) would have been present.

Under s 1(3) impossibility does not prevent the establishment of the mens rea of attempt.