COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NOTTINGHAM CROWN COURT
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE HOOPER
MR JUSTICE ASTILL
|- v -
MR DAVID FARRELL QC appeared on behalf of the CROWN
Hearing date : 19 February 2004
Crown Copyright ©
Lord Justice Potter:
i) Did the appellant assist X to commit murder by taking him and the gun to the caravan which was situated near to the home of the deceased?
ii) Did he take X to the caravan deliberately and in the knowledge that it would assist him to kill or cause really serious injury to the deceased or while realising that there was a real possibility that he might do so.
"I want you to take X over to Pat's. Pat's got to be taken care of because he's gone a step too far this time. I want you to take X over because Pat's gonna be shot."
The appellant's face had dropped at this.
"Leave it an hour or an hour and a half and go to Pat's and shoot him."
Submission of No Case
The judge's direction
"X has admitted, by his plea of guilty and by his evidence in this court to you, that he shot Patrick Moore in the head and killed him, not accidentally but intending to kill him, and that he did so unlawfully. He has not put forward any legal justification or excuse for so doing … He is therefore "the principal offender" in this murder, the man who did the deed.
The issue is whether George Black, Mary Black, Craig Bryce or any one of them prior to X committing the murder, were what the law calls accessories to the murder in that they "aided, abetted, counselled or procured" him to do so. If that is proved against any defendant then he or she is also guilty of murder.
These four words should be given their ordinary meaning. They can all describe acts done by someone who is physically absent from the murder scene.
In essence aiding describes any form of assisting the principal offender to commit the crime.
Abetting describes any incitement or encouragement to do so.
Counselling means advising the principal offender to take a particular course of conduct.
Procuring means making something happen by taking appropriate steps to produce that result; it must also have been shown that those steps were a significant cause (not the only cause or even the main or predominant cause) of that result happening.
What is essential, whatever of these four forms the accessory's action takes, is that the accessory –
(a) Does an act which in fact assists the principal offender
(b) deliberately does what is alleged against him or her, knowing it to be capable of assisting the principal offender to commit the offence, and
(c) Does it knowing or contemplating as a real (not a fanciful) possibility that the principal offender, with the help he or she is supplying, either will or may kill the victim deliberately and unlawfully, intending to do so, or at least will or may intentionally do the victim some really serious injury.
On the facts of this case what the prosecution set out to prove and must prove, as against … Craig Bryce are … the following matters:
He deliberately assisted by taking X to a caravan near PM's home, together with his gun, knowing that this was in order to assist X to kill or cause really serious injury to PM, or realising that there was a real possibility he might do so.
The fact that, as at the time when Bryce provided his assistance to him, X had not reached a final decision in his own mind whether or not to go through with the murder is no defence to this charge, provided that Bryce realised when providing the assistance that there was a real possibility that X might well do so.
If you find that Bryce did what he did reluctantly that of itself would not be a defence to this charge." (emphasis added)
The Grounds of Appeal
Ground 1: The judge should have upheld a submission of no case to answer made at the conclusion of the prosecution case on the basis that (a) what the appellant did was insufficient to amount to aiding and abetting the murder as it was too remote in time and place to the killing; and (b) was performed at a time when the principal offender (X) had not yet formed the intent to commit any criminal offence.
Ground 2: In summing up the judge failed to provide any analysis of what constituted aiding and abetting in order to assist the jury to decide what would be sufficient to constitute the offence. In particular, he failed to invite the jury to consider whether there was a sufficient proximity between the appellant's act and the murder or whether any aid was so minimal that it was insufficient to constitute the offence. It is argued that the jury were therefore left with the impression that any assistance no matter how remote or slight would be sufficient to establish this element of the offence.
Ground 3: The judge misdirected the jury in relation to the mental element required to constitute the offence of aiding and abetting murder and failed to direct that:
a) any intent on the part of the appellant was required;
b) that the prosecution had to prove that he had an intent to assist the principal offender to kill or cause really serious injury; and/or
c) that the appellant had the intent that the victim should be killed or caused really serious injury.
"Whosoever shall aid, abet, counsel or procure the commission of any indictable offence whether the same be an offence at common law or by virtue of any act passed or to be passed, shall be liable to be tried, indicted and punished as a principal offender." (emphasis added)
"In the modern law, secondary participation almost invariably consists simply in assisting or encouraging the commission of the crime and it is generally irrelevant whether the secondary participant is present or absent or whether his assistance or encouragement was given before or at the time of the offence. The only possible exception may be the procurer who succeeds in causing the principal to commit the crime (as in the A-G's Reference [No.1 of 1975]) without doing anything which could be fairly described as encouragement or assistance." (p.145)
"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."
"If in the present case the jury were satisfied that the car was driven towards the garage in pursuance of a murderous plan and that the appellant knew that that was the plan and intentionally drove the car in execution of that plan, he could be held to have aided an abetted even though he regretted the plan or indeed was horrified by it. However great his reluctance, he would have intended to aid and abet."
"Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence."
He went on to say:
"He need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the law is not a defence. If a person knows all the facts and is assisting another person to do certain things, and it turns out that the doing of those things constitutes an offence, the person who is assisting is guilty of aiding an abetting that offence."
This statement was approved by the House of Lords in Maxwell v DPP for Northern Ireland (1979) 68 Crim App R 128 HL.
"[The secondary party's] guilt springs from the fact that he contemplates the commission of one (or more) of a number of crimes by the principal and he intentionally lends his assistance in order that such a crime shall be committed. In other words, he knows that the principal is committing or about to commit one of a number of specified illegal acts and with that knowledge helps him to do so."
"The act of supply must be voluntary (in the sense I tried to define earlier in this speech), and it must be foreseen that the instrument or other object or service supplied will probably (or possibly and desiredly) be used for the commission of a crime." (Emphasis added)"
"So the position, on his own evidence, was that he took a leading part in the planning of the murder. He foresaw that the murder would, or at least might, take place. For a time he stalled the others. But he did nothing to stop them, and apart from his absence on the Thursday, he did nothing to indicate to them that he had changed his mind."
"If you are satisfied that Rook did any of those things intending to assist Armstrong and Leivers to commit a murder which he knew would probably be committed, then subject to what I shall say in a moment, you would be entitled to find him guilty of murder." (emphasis added)
"The first question is whether the sentence just quoted is a misdirection. Mr Hockman QC for the appellant submits that it is. It is necessary, he says, that the appellant should have intended the victim to be killed, when giving assistance, otherwise the mens rea required for a secondary party would be less culpable than that required for the principal."
"We cannot accept that argument. It is now well established that in a case of joint enterprise, where the parties are both present at the scene of the crime, it is not necessary for the prosecution to show that the secondary party intended the victim to be killed, or to suffer serious injury. It is enough that he should have foreseen the event, as a real or substantial risk: see Chan Wing-siu v R  3 All ER 877,  AC 168, R v Hyde  3 All ER 892,  1 QB 134 and Hui Chi-ming v R  3 All ER 897,  1 AC 34. Thus, a secondary party may be liable for the unintended consequences of the principal's acts, provided the principal does not go outside the scope of the joint enterprise.
We see no reason why the same reasoning should not apply in the case of a secondary party who lends assistance or encouragement before the commission of the crime."
"It follows that it is no defence to a secondary party to say that he did not intend the victim to be killed, or to suffer harm, if he contemplated or foresaw the event as a real or serious risk. In Lynch v DPP for Northern Ireland  1 All ER 913,  AC 653, overruled on another point in R v Howe  1 All ER 771,  AC 417, the accomplice drove the principal to a place where he knew the principal intended to kill a policeman. Lord Morris said that the intentional driving of the car was enough to render accomplice liable for aiding and abetting the murder, even though he regretted the plan, and indeed was horrified by it (see  1 All ER 913 at 924,  AC 653 at 678). In Smith and Hogan p 133 the mens rea for a secondary party is stated as follows:
'It must be proved that D intended to do the acts which he knew to be capable of assisting or encouraging the commission of the crime.'
If that is right, as we believe it to be, then there was no misdirection in the passage we have quoted, except that the reference to the appellant knowing that a murder would probably be committed is too favourable to the appellant, if it means more probably than not."
"Indeed Lowry LCJ in the Court of Appeal in Northern Ireland drew this very analogy in DPP for Northern Ireland v Maxwell  1 WLR 1350 at 1363. That was a case where the defendant was charged, in effect, with aiding and abetting:
'His guilt springs from the fact that he contemplates the commission of one (or more) of a number of crimes by the principal and he intentionally lends his assistance in order that such a crime will be committed.' (See  1 WLR 1350 at 1374 per Lowry LCJ.)
Lord Scarman, in the House of Lords, approved Lowry LCJ's formulation ( 1 WLR 1350 at 1362–1363):
'The principle thus formulated has great merit. It directs attention to the state of mind of the accused: not what he ought to have in contemplation, but what he did have. It avoids definition and classification, while ensuring that a man will not be convicted of aiding and abetting any offence his principal may commit, but only one which is within his contemplation.'"
"Before leaving the first question, we should mention the written direction which was handed to the jury. The direction was agreed after much discussion between the judge and counsel. It is as follows:
'Q.1 Has the prosecution proved that Rook did an act which, at the time he knew was capable of assisting or encouraging the commission of the murder in the belief that murder would probably be committed? In this context, by "probably" is meant the existence of a substantial or real risk that the murder would be committed and was not something which could be dismissed as negligible. If No, not guilty.'
This direction is cumbersome at first reading. But with one exception it is accurate. There is no reference to Rook's intention to do an act which he knew was capable of assisting etc. But there was never any issue that the acts which the appellant did were intentional, in the sense that he intended to do those acts. So the omission is immaterial, and is not relied on by Mr Hockman. For the reasons given, we would answer the first question adversely to the appellant."
"Thus in DPP for Northern Ireland v Lynch  AC 653 the accused's alleged opposition to the principal offence did not preclude a finding that he intended to aid."
"Gillick v West Norfolk and Wisbech Area Health Authority  AC 112 is an example of a type of case where the uncertainties of the precise meaning of intention effectively confer a perhaps welcome discretion on whether to impose responsibility. That case concerned, inter alia, the question of whether a doctor giving contraceptive advice or treatment to a girl under the age of 16 could be liable as accessory to a subsequent offence of unlawful sexual intercourse committed by the girl's sexual partner. The House of Lords held that generally this would not be the case (the action was a civil one for a declaration) since the doctor would lack the necessary intention (even though he realised that his actions would facilitate such intercourse). One rationale for the decision would be that a jury would not infer intention in such circumstances if they thought that the doctor was acting in what he considered to be the girl's best interests.
Similar reasoning could be applied to a troublesome group of cases involving the supply of articles for use in crime which the recipient already has some sort of civil right to receive. The general position seems to be that this is not aiding and abetting (see, for example, Lomas (1913) 9 Cr App R 220 concerning the return of a jemmy to its owner) because the alleged accessory does not intend to aid the offence but rather merely to comply with his supposed civil-law duties. Critics of this general position rightly point out that it can hardly apply to a person returning a revolver to its owner knowing that he is then going to use it to carry out a murder. But here a jury probably would infer intention to aid from the accused knowledge of the effects of his action, and the flexibility of the notion of intention enables an appropriate solution to be found to situations for which it is difficult to formulate precise rules in advance.
It is particularly important to stress the need for an intention to aid where the accused may not personally appreciate the natural and probable consequences of his action as in Clarkson  1 WLR 1402 where there was 'at least the possibility that a drunken man with his self-discipline loosened by drink ... might not intend that his presence should offer encouragement to rapers; ... he might nor realise that he was giving encouragement' (at p. 1406). The reference to intoxication underlines the fact that complicity normally requires intention rather than recklessness (Blakely v DPP  Crim LR 763) and that, for the purposes of the Majewski rule (DPP v Majewski  AC 443: see A3.10), complicity can be regarded as requiring specific intent."
"the liability of a participant in a joint criminal enterprise when another participant in that enterprise is guilty of a crime, the commission of which was not the purpose of the enterprise"
"it is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm."
"Where a person charged with murder as an aider and abettor is shown to have intentionally done an act which assists in the commission of the murder with knowledge that the probable result of his act, combined with the acts of those whom his act is assisting, will be the death or serious bodily injury of another, is his guilt thereby established without the necessity of proving his willingness to participate in the crime?" (emphasis added)
"As Devlin J said in National Coalboard v Gamble  1 QB 11, 20:
A person who supplies the instrument for a crime or anything essential to its commission aids in the commission of it; and if he does so knowingly and with intent to aid, he abets it as well and is therefore guilty of aiding and abetting.
The actus reus is the supplying of an instrument for a crime or anything essential for its commission. On Devlin J's analysis the mens rea does not go beyond this. The act of supply must be voluntary (in the sense I tried to define earlier in this speech), and it must be foreseen that the instrument or other object or service supplied will probably (or possibly and desiredly) be used for the commission of a crime. The definition of the crime does not in itself suggest any ulterior intent; and whether anything further in the way of mens rea was required was precisely the point at issue in Gamble's case. Slade J thought the very concept of aiding and abetting imported the concept of motive. But Lord Goddard CJ and Devlin J disagreed with this. So do I. Slade J thought that abetting involved assistance or encouragement, and that both implied motive. So far as assistance is concerned, this is clearing not so. One may lend assistance without any motive, or even with the motive of bringing about a result directly contrary to that in fact assisted by one's effort."
(a) an act done by D which in fact assisted the later commission of the offence,
(b) that D did the act deliberately realising that it was capable of assisting the offence
(c) that D at the time of doing the act contemplated the commission of the offence by A i.e. he foresaw it as a 'real or substantial risk' or 'real possibility' and ,
(d) that D when doing the act intended to assist A in what he was doing.
"You cannot procure an offence unless there is a causal link between what you do and the commission of the offence."
Further, in no less an authority than Stephen's Digest (4th ed) Art 39, it is stated that, not only one who procures but one who 'counsels' or 'commands' is liable, and by implication only liable, when the crime committed by the perpetrator
" … is committed in consequence of such counselling, procuring, or commandment."
"It is of the essence of the offence established by 'counselling, procuring or commanding' that, as a result of the counselling, procuring or commanding, something should have happened which constituted either the full offence or the attempt …" (emphasis added)
"There is no implication in the word itself that there should be any causal connection between counselling and the offence. [But] there must clearly be, first, contact between the parties, and, second, a connection between the counselling and the murder. So long as there is counselling … so long as the principal offence is committed by the one counselled and so long as the one counselled is acting within the scope of his authority … we are of the view that the offence is made out."
"Considered as a matter of causation there … [is] … an overwhelming supervening event which is of such a character that it will relegate into history matters which would otherwise be looked upon as causative factors"
per Lord Parker CJ in R v Anderson and Morris  2 QB 110 at 120, when considering the question of the liability of an accomplice for acts of a perpetrator which have gone beyond the parties' common purpose. Absent some such 'overwhelming supervening event', if the secondary party is to avoid liability for assistance rendered to the perpetrator in respect of steps taken by the perpetrator towards the commission of the crime, only an act taken by him which amounts to countermanding of his earlier assistance and a withdrawal from the common purpose will suffice. Repentance alone, unsupported by action taken to demonstrate withdrawal will be insufficient. Thus, if the secondary party had the necessary mens rea at the time of the act of rendering his advice or assistance, the fact that his mind is 'innocent' at the time when the crime is committed is no defence: see R v Becerra (1975) 62 Crim App R 212. In that case it was stated that any communication of withdrawal by the secondary party to the perpetrator must be such as to 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 the withdrawing party: c.f. the position in R v Whitefield (1984) 79 Crim App R 36.
"The unfairness that Mr Foy identifies, the heart of his submission, is answered in my judgment in this way. First, the assister can – and his client certainly could have – withdrawn the assistance by warning the victim, telling the police what he had done and, secondly, although he was not himself embarked upon a criminal enterprise in the classical joint enterprise sense, there seems little unfairness to my eyes in holding criminally liable one who has put P in a position to commit a crime in circumstances such that all that stands between the victim and the effect of the crime is the crystallizing of P's final murderous intent. I do not view this anomaly, if such it is, as any worse than that which Lord Hutton and the other members of the House of Lords felt able to live with in R v Powell: R v English. I therefore rule that the mental element of this offence is substantially as formulated by the prosecution … "
"This is what the prosecution have to show. They have to show that "he deliberately assisted by taking X to a caravan near Pat Moore's home, together with his gun, knowing that this was in order to assist X to kill or cause really serious injury to Pat Moore or realising that there was a real possibility he might do so." First of all the question therefore that arises is: did he deliberately assist? Mr Foy has addressed you to say this, what he did did not assist the plan, indeed he says it hindered it, it introduced a delay of 10, 12, 13 hours, it might even have prevented it, it left X there to sit there overnight thinking about it. He would have had to wander the streets to an extent from the caravan to Brudenel to do the deed, he might even have been caught. What Mr Foy says is Craig Bryce is distancing himself, on the prosecution's evidence, from this scheme. The prosecution robustly answer that by saying if you want to hinder the plan there's a simpler way of doing it, you pick up the phone to Pat Moore or to the police or you drop X somewhere else altogether. As we will see later, Bryce does not himself say in his interviews that yes, he did do this but he was trying to prevent the murder. Mr Foy's argument is based on submissions he makes to you from what the rest of the evidence amounts to and you must consider it in that light. The prosecution case is simply that the carrying of X across Peterborough was a vital part of this plan. Did he take him to the caravan? X's evidence says he did, Bryce's own later interviews go some way to support him, he says he took him to Orton Centre. Did he know the purpose of the trip? The crucial issue. It depends on X's evidence that he saw the gun, heard the instructions from George, "His face fell" showing he realised what was happening. You have to be sure of all these things before you can convict him on count 1. We will consider his interviews a little later."
"I then reflected on the events at 47 St Martins Street and Pat Moore's actions. It was during this reflection that I formed the opinion that I would shoot Pat."
"I bring this to the attention of the police and Craig Bryce's legal team as I did not think that Bryce would be convicted of the murder, although I am happy that he assisted in the disposal of the weapon … I feel bad about the sentence that Craig received and I wanted to put it right … "
"He deliberately assisted by taking X to a caravan near PM's home together with is gun, knowing that this was in order to assist X to kill or cause really serious injury to PM or realising that there was a real possibility he might do so." (emphasis added)"
" … sure that he deliberately took X to the caravan with the gun, that these actions had in fact assisted X to murder Pat Moore and that Bryce realised that there was a real possibility that X, with the help which Bryce had provided in taking him to the caravan with the gun, might kill or cause really serious injury to Pat Moore?"
He submits that, whereas the words in the written direction "knowing that this was in order to assist X to kill or cause really serious injury to PM" amounted to sufficient "intent to assist" (see paragraph 75 above), the words "in order to" were absent from the oral passage just quoted, thus leaving it open to the jury to convict on the basis of no more than foresight that his actions might assist X in what he was doing.
"Mr Foy's suggestion on his behalf is that if you do think on the whole of the evidence that Craig Bryce knew of the intended plan, what he actually was doing and trying to do and succeeded in doing was hindering it not helping it by making this suggestion about the caravan, introducing the delay into it and so forth. As you will see, it is not clear what Craig Bryce himself is saying in [his] interview, it is a conclusion that Mr Foy asks you – and he is entitled to do this – to draw from the whole of the evidence." (Emphasis added)