England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [1983] QB 1083, [1982] EWCA Crim 1, [1983] 2 WLR 227, [1983] 1 All ER 189

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JISCBAILII_CASE_CRIME

		BAILII Citation Number: [1982] EWCA Crim 1
		Case No.: 3895/B2/81

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice,

8th July 1982

B e f o r e :

LORD JUSTICE O'CONNOR
MR. JUSTICE NEILL
and
MR. JUSTICE TAYLOR
____________________

	R E G I N A
	-v-
	ROBERT FITZMAURICE

____________________

(Transcript of the Stenotype Notes of Marten Walsh Cherer, Ltd., 36/38
Whitefriars Street, Fleet Street, London EC4Y 8BJ. Telephone number: O1-583 7635.
Shorthand Writers to the Court. )

____________________

MR. D. COCKS, Q. C., and MISS L. DOBBS appeared on behalf of the appellant.
MR. P. 0. PURNELL appeared on behalf of the Crown.
____________________

HTML VERSION OF JUDGMENT
____________________

MR. JUSTICE NEILL: On the 22nd July 1981, Robert Fitzmaurice was convicted at the Central Criminal Court of unlawfully inciting three men — Terence Bonham, James Brown and Steven Brown — to commit robbery by robbing a woman at Bow. He was sentenced to twelve months' imprisonment. The appellant was charged with two other men, but the charges against them were not proceeded with because they had already pleaded guilty in January 1981 to a number of other counts in the same indictment and had each been sentenced to four years' imprisonment. One of these other two men was the appellant's father.

The appellant appealed against his conviction by leave of the single judge. On 29th April, 1982, the appellant's appeal was dismissed by this court. We now give the reasons for the dismissal of the appeal.

The facts of the case were unusual. They have been set out in a convenient form in an Agreed Statement of Facts as follows:

(1) On the 28th September 1978 Bonham, James Brown and Steven Brown were arrested in Bow in a green van. Bonham was the driver and the Browns were each armed with an imitation firearm. All had sleeve masks and there was a pickaxe handle in the van.

(2) Bonham and the others believed that they were there to carry out a wages snatch from a woman walking from her place of work to the bank. A security van was due to visit the National Westminster Bank in Bow Road at this time, and police officers had received information from the appellant's father that a robbery on the security van had been planned. All three were subsequently charged with conspiracy to rob a person on the basis of their account that they were there to rob a woman of money on her way to the bank and not the security van. At their trial they pleaded guilty to the conspiracy count and were sentenced to imprisonment.

(3) Subsequent investigations revealed that the three men were the victims of a trick by the appellant's father, and had been set up to carry out a robbery by him so that he and his accomplice Skipp could collect the reward money for informing the police of an intended raid on the security van. That information was false and the invention of the appellant's father.

(4) The appellant's father asked the appellant if he could find someone to carry out a robbery. The appellant approached Bonham, informed him of the proposed robbery, describing it as a "wages snatch". The appellant brought Bonham to an address where the appellant's father outlined the plan.

The plan was to snatch wages from a woman carrying money from a factory to a bank in Bow, East London. The appellant offered to participate, but was excluded. Bonham agreed to the plan.

Later Bonham, who had recruited the two Browns, visited Bow with the appellant's father, but not the appellant. They saw a woman, in fact Skipp's girlfriend, walking from the factory to the bank. She was carrying a bag. The following week the appellant's father took Bonham and the two Browns to Bow again and pointed out where the getaway car would be left.

On the day appointed, Bonham and the others met at the appellant's house. Imitation guns and masks were distributed. Bonham and the others left the premises and were subsequently arrested.

The Appellant believed throughout that the robbery plan was genuine and agreed to accept £200 and a television for his part. (5) On the 5th June 1981, Bonham had his conviction for conspiracy set aside by the Court of Appeal on the grounds that the crime which he had conspired to commit was impossible of fulfilment. Lord Justice O'Connor said, "However morally culpable, the truth is that these three men had been fraudulently induced to agree to commit a crime which could not be committed in the strict sense; they were themselves the victims of a different conspiracy to which they were not parties. " In support of the appellant's appeal to this court, Mr. Cocks put forward two submissions:

(a) That the trial judge had misdirected the jury as to the meaning of "incitement"; and

(b) that the appellant could not be guilty of inciting other men to commit a crime which in fact could not be committed.

On his first submission, Mr. Cocks drew our attention to a passage in the summing-up at page 61. The judge said this:

"The word 'incitement' is a word which is used in widely differing circumstances. A person can incite another to envy or hatred. A person can also be incited to loyalty and patriotism. Here, the charge is that the accused incited Mr. Bonham to commit a crime.

"Now, the original approach by the defendant to Mr. Bonham is not denied. There is no dispute about the fact that the defendant approached Mr. Bonham, and it was an approach to him to commit a crime. There is no question about that. The defendant does not deny that Mr. Bonham was an old friend of his, and that he knew at the. time that he was out of work and needed money. You may conclude that an approach to Mr. Bonham in those circumstances by the defendant, whether it was a suggestion, a proposal or a request, was an approach that embodied naturally the promise of reward, that if he engaged in the enterprise he would get money. That prospect, you may think, was the most persuasive factor in the approach. If you take that view, then clearly you may think that there was incitement to commit the crime, in the broad sense I have indicated. "

Mr. Cocks criticized this passage on the basis that it provided an unsatisfactory and inadequate definition of incitement because the judge did not sufficiently instruct the jury as to the necessity of proof that the appellant had persuaded or encouraged the commission of the robbery. He submitted that there was a clear distinction between the mere procurement of a crime and incitement. Procuration, he said, did not necessarily involve any persuasion or counselling of a third party by the defendant to commit the crime. Similarly, said Mr. Cocks, a person may be liable as an accessory before the fact — for example, by providing the tools for a crime — but, in the absence of any proof of persuasion to commit the crime, he will not be guilty of incitement. Mr. Cocks drew our attention to a number of authorities including the decisions in Race Relations Board v Hendrickson (1977) Cr. L. R. 356. In addition we were provided with a full transcript of the Judgment of Stephenson LJ in the Hendrickson case.

We have considered this submission in the context of the present case. In our judgment the judge gave a perfectly adequate definition to deal with the facts which the jury had to consider. We are satisfied that in some cases a person who is deputed to collect men together to take part in a crime may well not be guilty of incitement. For example, his role may be limited to informing certain named individuals that the planner of the enterprise would like to see them. But in the present case the judge could point to the fact that Bonham was out of work and needed money. The suggestion, proposal or request was accompanied by an implied promise of reward. Indeed, by using the words "That proposal, you may think, was the most persuasive factor in the approach", the judge rightly focused the attention of the jury on the element of persuasion which it was necessary for the prosecution to prove. We therefore see no reason to fault the judge's summing up in this respect.

Mr. Cocks' second submission, however, is at first sight more formidable. Incitement is one of the three inchoate offences — incitement, conspiracy and attempt. Mr. Cocks argued that there was no logical basis for treating the three offences differently when considering their application in circumstances where the complete offence would be impossible to commit, and that therefore the court should apply the principles laid down by the House of Lords in the case of attempts in Haughton v. Smith (1975) A C 476 and in the case of conspiracy in DPP v. Nock (1978) A. C. 979.

Mr. Cocks pointed to the fact that though the law as laid down by the House of Lords in those two cases had been altered by statute by section 1(2) and section 5(1) of the Criminal Attempts Act, 1981, there had been no change in the law relating to the offence of incitement. Accordingly, he said, the common law rule as to impossibility should be applied.

It is to be observed that the omission of the crime of incitement from the Criminal Attempts Act, 198l, followed the recommendations of the Law Commission in their Report No. 102 and was in accordance with the Draft Bill set out in Appendix A to that Report. The Law Commission explained the omission of incitement from the Draft Bill on the basis that in their view the House of Lords in DPP v. Nock was prepared to distinguish the law relating to incitement from that relating to attempts: see paragraphs 4.2 to 4.4. We have had to give careful attention to these paragraphs in the Law Commission's Report.

We have also had to consider with care the passage in the speech of Lord Scarman in DPP v. Nock which appears to have formed the basis for the decision by the Law Commission to exclude incitement from their recommendations for change and from their Draft Bill.

In DPP v. Nock (1978) A. C. 979, Lord Scarman at page 999 made reference to two cases which had been cited to their Lordships. He said this:

"Our attention was also drawn to two cases, upon which it may be helpful to comment very briefly. In R. v. McDonough (1962) 47 Cr. App. R. 37, the Court of Criminal Appeal held that an incitement to receive stolen goods was complete on the making of the incitement even though there were no stolen goods — perhaps even, no goods at all. In Haggard v. Mason (1976) I W. E. R. 187, the Divisional Court held that the offence of offering to supply a controlled drug was committed, even though the drug in fact supplied was not a controlled drug. Neither of these cases infringes the principle in R. v. Smith for, in each, as Lord Widgery CJ. pointed out in Haggard v. Mason (p. 189), the offence was complete. In McDonough the actus reus was the making of the incitement; and in Haggard it was the making of the offer. "

We have come to the conclusion that, on analysis, this passage in Lord Scarman's speech does not support the proposition that cases of incitement are to be treated quite differently at common law from cases of attempt or conspiracy.

The decision in Haggard v. Mason related to the statutory offence of offering to supply a controlled drug- and, as Lord Scarman pointed out, the actus reus which the prosecution had to prove was the making of the offer.

The explanation of McDonough's case, as it seems to us, is that though there may have been no stolen goods or no goods at all which were available to be received at the time of the incitement, the offence of incitement to receive stolen goods could nevertheless be proved because it was not impossible that at the relevant time in the future the necessary goods would be there.

In our view, therefore, the right approach in a case of incitement is the same as that which was underlined by Lord Scarman in DPP V. Nock when he considered the offence of conspiracy. In every case it is necessary to analyse the evidence with care to decide the precise offence which the defendant is alleged to have incited.

In DPP v. Nock (1978) A. C. 979, Lord Scarman said this at page 995:

"The indictment makes plain that the Crown is alleging in this case a conspiracy to commit a crime: and no one has suggested that the particulars fail to disclose an offence known to the law. But the appellants submit, and it is not disputed by the Crown, that the agreement as proved was narrower in scope than the conspiracy charged. When the case was before the Court of Appeal, Counsel on both sides agreed that the evidence went to prove that the appellants agreed together to obtain cocaine by separating it from the other substance or substances contained in a powder which they had obtained from one of their co-defendants, a Mr. Mitchell. They believed that the powder was a mixture of cocaine and lignocaine, and that they would be able to produce cocaine from it. In fact the powder was lignocaine hydro-chloride, an anaesthetic used in dentistry, which contains no cocaine at all. It is impossible to produce by separation or otherwise, cocaine from lignocaine...

"The trial judge in his direction to the jury, and the Court of Appeal in their judgment dismissing the two appeals, treated this impossibility as an irrelevance. In their view; the agreement was what mattered: and there was plain evidence of an agreement to produce cocaine, even though unknown to the two conspirators it could not be done. Neither the trial judge nor the Court of Appeal thought it necessary to carry their analysis of the agreement further. The trial judge described it simply as an agreement to produce cocaine. The Court of Appeal thought it enough that the prosecution had proved 'an agreement to do an act which was forbidden by section 4 of the Misuse of Drugs Act 1971.' Both descriptions are accurate, as far as they go. But neither contains any reference to the limited nature of the agreement proved: it was an agreement upon a specific course of conduct with the object of producing cocaine, and limited to that course of conduct. Since it could not result in the production of cocaine, the two appellants by pursuing it could not commit the statutory offence of producing a controlled drug. "

In our view these words suggest the correct approach at common law to any inchoate offence. It is necessary in every case to decide on the evidence what was the course of conduct which was (as the case may be) incited or agreed or attempted. In some cases the evidence may establish that the persuasion by the inciter was in quite general terms whereas the subsequent agreement of the conspirators was directed to a specific crime and a specific target. In such cases where the committal of the specific offence is shown to be impossible it may be quite logical for the inciter to be convicted even though the alleged conspirators (if not caught by section 5 of the Criminal Attempts Act, 1981) may be acquitted. On the other hand, if B and C agree to kill D and A, standing beside B and C, though not intending to take any active part whatever in the crime, encourages them to do so, we can see no satisfactory reason, if it turns out later that D was already dead, why A should be convicted of incitement to murder whereas B and C at common law would be entitled to an acquittal on a charge of conspiracy. The crucial question is to establish on the evidence the course of conduct which the alleged inciter was encouraging.

We return to the facts of the instant case. Mr. Cocks submitted that the "crime" which Bonham and the two Browns were being encouraged to commit was a mere charade. The Appellant's father was not planning a real robbery at all and therefore the appellant could not be found guilty of inciting the three men to commit it. In our judgment, however, the answer to Mr. Cocks' argument is to be found in the facts which the prosecution proved against the appellant. As was made clear by Mr. Purnell on behalf of the Crown, the case against the appellant was based on the steps he took to recruit Bonham. At that stage the appellant believed that there was to be a wage snatch and he was encouraging Bonham to take part in it. As Mr. Purnell put it, "The appellant thought he was recruiting for a robbery not for a charade". It is to be remembered that the 'particulars of offence in the indictment included the words "by robbing a woman at Bow". By no stretch of the imagination was that an impossible offence to carry out and it was that offence which the appellant was inciting Bonham to commit.

For these reasons, therefore, we are satisfied that the appellant was rightly convicted. The appeal is dismissed.