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Cite as: [2007] EWLC 305(4)

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PART 4

CAUSING OTHERS TO COMMIT OFFENCES

INTRODUCTION

4.1 In this Part we set out and explain our recommendations:

(1) for replacing the common law doctrine of innocent agency with a statutory version of the doctrine; and

(2) for a new offence of causing a person to commit a no-fault offence which would replace the current law whereby D incurs secondary liability for 'procuring' P to commit a no-fault offence.

'Procuring' as a basis of secondary liability

4.2 In Part 3, we recommended that section 8 of the Accessories and Abettors Act 1861 should be repealed and that the conduct element of secondary liability should consist of assisting and encouraging. Section 8 currently enables D to be convicted of an offence as a secondary party if he or she 'procures' the commission of an offence. 'Procuring' implies a special kind of causal link between D's conduct and P's commission of the principal offence. Where D procures P's offence, the offence would not have taken place without D's conduct (or D's conduct together with that of another who jointly with D procures the offence).^[1] That kind of causal link is not required when D merely encourages or assists P to commit the principal offence. In such cases, D can be liable even though P would have gone on to commit the offence without D's assistance or encouragement.

4.3 Although a scheme of secondary liability limited to 'assisting' and 'encouraging' would encompass certain cases that currently fall within the concept of 'procuring', it would not cover all of them.^[2] In this Part, we explain how cases of 'procuring' would be accommodated within the scheme that we are recommending.

4.4 The inclusion of 'procuring' in section 8 means that under the current law D can be convicted as a secondary party in three situations despite P not having committed a principal offence:

(1) D causes P to commit the conduct element of an offence that P cannot commit because P is under the age of criminal responsibility or is insane;

(2) D causes a non-culpable P to commit the conduct element of an offence that requires fault on the part of P. P commits no offence because he or she does not satisfy the fault element of the offence;

(3) P perpetrates the conduct element of an offence following threats of violence (duress) by D. P is not guilty of the offence despite satisfying the fault element of the offence because duress is a complete defence.

4.5 Under our recommendations, in cases within category (3), D would still be liable as a secondary party even though P would not have committed a principal offence.^[3] In cases within categories (1) and (2), D would be liable as a principal offender by virtue of the statutory doctrine of innocent agency that we are recommending should replace the common law doctrine of innocent agency.

4.6 Under the current law, in cases falling within categories (1) and (2), D is usually convicted as a principal offender (under the common law doctrine of innocent agency) rather than as a secondary party. However, sometimes it is not possible in such cases to invoke the doctrine to convict D as a principal offender because:

(1) the conduct element of the principal offence may be defined in such a way that, as a matter of law, D cannot perpetrate it as a principal offender. For example, suppose D, a bachelor, encourages P, a married woman, to go through a ceremony of marriage with him by falsely persuading her that her current marriage is void. Only those who are married can commit the conduct element of the offence of bigamy. It is, therefore, wrong to posit that D himself commits bigamy through the innocent agency of P.^[4]

(2) the principal offence can only be committed by a member of a particular class of persons and D is not such a person. For example, D, aged 40, falsely persuades P, aged 40, who is the sole person who has trust and care of V, aged 17, that P is at liberty to engage in sexual activity with V because the relationship of trust and care has come to an end. Only a person who abuses a position of trust can be guilty of the relevant offence and D is not such a person.^[5]

4.7 In order to convict D, the courts have resorted to the concept of 'procuring'. In doing so, they have held that D can be convicted as a secondary party by virtue of having procured the commission of the conduct element of an offence. These cases ^[6] are exceptions to the derivative nature of secondary liability and, according to Professor Ashworth, represent "the high-water mark of causal connection among the various types of accessorial conduct".^[7]

A STATUTORY DOCTRINE OF INNOCENT AGENCY

The elements of the doctrine

4.8 The essence of the doctrine should continue to be what it is at common law. Under our recommendations, D would be guilty of an offence as a principal offender if he or she uses an innocent agent, P, to commit an offence. However, our recommendations would address the limitations of the current common law doctrine.

Liability not restricted by special characteristics required of principal offender

4.9 The common law doctrine of innocent agency encounters difficulty in coping with cases where the principal offence can only be committed by those who meet a particular description, for example, only men can commit rape and only married persons can commit bigamy. Accordingly, clause 3 of the Bill provides that, if an offence is one that may be committed only by a person who meets a particular description, D can be guilty of the offence even though he or she does not meet the description. Thus, although by virtue of section 1(1)(a) of the Sexual Offences Act 2003 a woman cannot be convicted of rape as a principal offender, it would be possible for a woman to be convicted of rape if she uses an innocent agent, P, to perpetrate the conduct element of rape.

Meaning of innocent agent

4.10 Under our recommendations, P would be an innocent agent if he or she perpetrated the conduct element of a principal offence but was not guilty of the offence because:

(1) P was under the age of 10;

(2) P had a defence of insanity; or

(3) P acted without the fault required for conviction of the principal offence.

4.11 We have considered whether the doctrine should also apply in cases where the reason why P does not commit the principal offence is that P has a complete defence, for example, duress ^[8] or, if the principal offence is murder, a partial defence, for example, provocation or diminished responsibility.^[9] We recognise that there is a case for including such persons and that not to do so would perpetuate exceptions to the derivative theory of secondary liability. Further, we acknowledge that we have previously recommended that in such cases D should be liable as a principal offender.^[10]

4.12 We believe, however, that they are exceptions in only the narrowest sense. Although a successful plea of duress excuses P from liability, P has not only perpetrated the conduct element of the principal offence but has done so with the requisite fault element. Likewise, a successful plea of provocation or diminished responsibility does not alter the fact that P has committed the conduct element of murder with the requisite fault element.

4.13 On balance, we are persuaded that such cases are conceptually distinct from those where the reason that P does not commit the principal offence is either because P lacks capacity or acts without the requisite fault element. Neither duress, on the one hand, nor provocation or diminished responsibility, on the other, renders P a wholly innocent agent. In both cases, P is aware of the nature of the act that he or she is committing and the circumstances in which he or she is committing it. This is not altered by the fact that in cases of duress, D is the source of P's claim to be excused. D should continue to be liable as a secondary party.^[11]

SEMI-INNOCENT AGENTS

4.14 In Part 2, we explained that the common law had encountered difficulties in cases where two offences of different seriousness consisted of the same conduct element but had different fault elements. Following the disapproval of Richards^[12] by the House of Lords in Howe,^[13] it is now settled that, if D satisfies the fault element of the more serious offence, he or she can be convicted of that offence despite P only satisfying the fault element of the less serious offence.^[14]

4.15 Under our recommendations, the basis of D's liability for the more serious offence would be clear. Provided that D had intended to and did cause P to perpetrate the conduct element of the more serious offence, D would be liable for the more serious offence as a principal offender. P would be an innocent agent in relation to that offence because he or she would not have satisfied its fault element.

'Using' P to commit the principal offence

4.16 D must satisfy three requirements before he or she can be held to have "used" P to commit the principal offence:

(1) D must intend to cause a person, whether P or another person, to commit the conduct element of the principal offence;

(2) D must cause P to commit the conduct element; and

(3) D must be at fault in relation the principal offence.

We consider briefly each of these requirements.

INTENDING TO CAUSE A PERSON (WHETHER P OR ANOTHER PERSON) TO COMMIT THE CONDUCT ELEMENT OF THE PRINCIPAL OFFENCE

'Intending' to cause

4.17 Consider the following example:

Example 4A

D, the owner of a shotgun forgets that he has left it loaded on the kitchen table. His seven-year-old son picks it up and accidentally shoots and kills V, the postman.^[15]

D did not intend to cause P to perpetrate the conduct element of manslaughter.

4.18 Professor K J M Smith has pointed out that:

There is no inherent conceptual restriction of innocent agency to cases where the defendant has intentionally or purposefully caused or brought about the innocent agent's actions.^[16]

Accordingly, it is arguable that the doctrine can and should apply if D is culpable in the way required by the principal offence, in this case, manslaughter by gross negligence. Indeed, this is the view that the Commission adopted when it published its draft Criminal Code Bill.^[17]

4.19 However, we now believe that the notion of 'agency' in innocent agency implies that D intends to act through P. P cannot properly be said to be the agency through which D him or herself acts unless D intended that P should act in a particular way. Accordingly, in example 4A, under our recommendation, D would not be guilty of manslaughter by virtue of innocent agency. Rather, determining whether D was guilty of manslaughter would involve consideration of the orthodox principles of primary liability: was D's breach of duty in leaving the gun on the table a sufficiently proximate cause of V's death and, if so, was he grossly negligent in leaving the gun as he did?

'P or another person'

4.20 In most cases it will be D's intention to cause P to commit the conduct element of the offence and it will be P who commits it. However, D ought not to escape liability merely because D intended that someone other than P should commit the conduct element:

Example 4B

D sends a letter to his nine-year-old nephew, X, telling him to set fire to the local cricket club's pavilion. D tells X that if he does so, D will buy X and his eight- year-old brother, P, a present. X shows the letter to P and it is P who sets fire to the pavilion.

Although D did not intend that P should set fire to the pavilion, D is as culpable as he would have been had X had set fire to the pavilion.

Variation in the details of the conduct element

4.21 Further, while it must be D's intention that someone commit the conduct element of the principal offence, it should be irrelevant whether the act perpetrated by P in committing the conduct element of the offence was the particular act that D intended should be perpetrated:

Example 4C

P, aged 9, is staying with his grandmother, V. D telephones P and promises to give P a present if he steals a video recorder from V. P cannot find any video recorder. However, anxious to secure the present, P takes a digital radio and gives it to D.

D's intention was that P should commit the conduct element of theft by appropriating V's property. P has done what D intended albeit the item of property taken is not what D intended. That should not prevent D being convicted of theft. It would be different if P, annoyed at not finding the recorder, had decided to set fire to V's premises. D had not intended that the conduct element of arson should be committed and, ought not to be guilty of arson.

'CAUSING' P TO PERPETRATE THE CONDUCT ELEMENT OF THE PRINCIPAL OFFENCE

4.22 In most cases it will be clear whether D has caused P to commit the conduct element. However, there will be borderline cases:

Example 4D

D comes across his son P, aged 9, assaulting another child V, aged 6. Rather than stop P attacking V, D urges P to step up the attack. V suffers multiple bruising.

On one view, D has not caused P to attack V because P was already attacking V before D intervened. However, despite not causing P initially to attack V, we believe that D ought to be liable by virtue of urging P to continue the attack. Accordingly, clause 11(3) of the Bill provides that the doing of a criminal act includes 'the continuation of an act that has already begun'.

4.23 By contrast:

Example 4E

D's son P, aged 9, tells D that he has made up his mind to attack V aged 6. D urges P to go ahead with the plan. P does so inflicting actual bodily harm on V.

In the first report, we made recommendations that would enable D in this example to be held inchoately liable for encouraging P to commit assault occasioning actual bodily harm.^[18] However, D cannot be convicted of the principal offence by virtue of innocent agency because he has not caused P to do the act of assaulting V.

BEING AT FAULT IN RELATION TO THE PRINCIPAL OFFENCE

Principal offences that require proof of fault

4.24 We are recommending that, if a particular state of mind must be proved for conviction of the offence that D uses P to commit, D's state of mind must be such that were he or she to engage in the conduct element, it would be with that state of mind:

Example 4F

D tells his 6-year-old son, P, to go to the grocer and purchase a carton of milk. D gives P the money to pay for it. Instead, P goes to the shop and takes the milk without paying.

Had P been an adult, he would have committed theft because he appropriated the milk 'dishonestly'. D is not guilty of theft because, although he intended to and has caused P to perpetrate the conduct element of theft, he did not do so 'dishonestly'.

Principal offences that do not require proof of fault

4.25 Cases where D will be liable for a no-fault offence by virtue of the statutory doctrine of innocent agency that we are recommending will be very rare. They will be cases where D causes P, a person who is under the age of criminal responsibility, to commit the conduct element of a no-fault offence.^[19] If such a case were to arise, D should have to know or believe that were P to commit the conduct element, P would do so in the circumstances and with the consequences required for conviction of the principal offence:

Example 4G

D allows her nine-year-old son, P, to drive her car on a public road. Unknown to D, her husband had given P some beer shortly before D allowed P to drive the car. As a result, P is in excess of the prescribed limit when driving the vehicle.

Under our recommendations, D would not be guilty of driving with excess alcohol because she did not know that P was in excess of the prescribed limit.

Summary

4.26 Professor Ashworth has stated:

Some offences are phrased in terms which imply personal agency (rape is said to be one) or which apply only to the holder of a certain office or licence. There is no reason why the law should be constrained by [the linguistic] barrier.^[20]

We agree. It is for this reason that, although the statutory doctrine of innocent agency that we are recommending is not dissimilar to the common law doctrine, we have endeavoured to free the doctrine from the constraints that confine its scope at common law.

Recommendations^[21]

4.27 We recommend that:

(1) if D uses an innocent agent (P) to commit an offence ("the principal offence"), D is guilty of the principal offence.

(2) P is an innocent agent if:

(a) he or she commits the conduct element of the principal offence; and

(b) he or she does not commit the principal offence itself solely because:

(i) he or she is under the age of 10;

(ii) he or she has a defence of insanity; or

(iii) he or she acts without the fault required for conviction of the principal offence.

(3) D uses P to commit the principal offence if:

(a) D intends to cause a person (whether or not P) to commit the conduct element of the principal offence;

(b) D causes P to commit the conduct element of the principal offence; and

(c) D is at fault in relation to the principal offence.

(4) D is at fault in relation to the principal offence if:

(a) where conviction of the principal offence requires proof of fault, D's state of mind is such that, were he or she to commit the conduct element of the principal offence, he or she would do it with the state of mind necessary to be convicted of the offence; or

(b) where conviction of the principal offence does not require proof of fault, D knows or believes that were a person to commit the conduct element of the principal offence, that person would do so:

(i) in the circumstances (if any); and

(ii) with the consequences (if any)

proof of which is required for conviction of the principal offence.

(5) D may be guilty of the principal offence through using P to commit the offence:

(a) even though the principal offence is one that may be committed only by a person who meets a particular description; and

(b) D does not meet that description.

(6) The common law doctrine of innocent agency should be abolished.

CAUSING THE COMMISSION OF A NO-FAULT OFFENCE

4.28 In the CP,^[22] the Commission suggested that, in addition to the two inchoate offences then proposed of encouraging crime and assisting crime, there might be a case for a separate offence of 'procurement'. The offence would have imposed secondary liability on D for procuring the commission of a no-fault offence. The offence would have covered the situation where D 'laces' P's non-alcoholic drink and as a result P commits the offence of driving with excess alcohol. A significant number of respondents agreed.

4.29 However, we no longer believe that there should be a separate offence of 'procuring' whereby D incurs liability as a secondary party for the principal offence that P commits. Instead, we believe that there should be a discrete offence of causing another person to commit a no-fault offence. The offence is necessary because under our scheme secondary liability would be confined to conduct that consists of encouraging or assisting. It is inappropriate to describe D's conduct in causing P to commit a no-fault offence as encouraging or assisting P to commit the offence.

The elements of the offence

4.30 D would commit the offence if he or she caused P to commit a no-fault offence and:

(1) it was D's intention that a person, whether or not P, should commit the offence; or

(2) D knew or believed that his behaviour would cause the offence to be committed.

D does not have to cause P to commit the conduct element of the offence

4.31 Rather than requiring D to have caused P to commit the conduct element of the offence in every case, it suffices that D causes P to commit the offence. In this sense, causing the presence of the circumstances which make the commission of the conduct element a criminal offence will suffice:

Example 4H

D and P are in a pub. D knows that P will be driving home. D "laces" P's non-alcoholic drink with a large vodka. P drives home and is stopped. He is in excess of the prescribed limit because of the vodka dispensed by D. P is convicted of driving with excess alcohol.

D has not caused P to commit the conduct element of the offence (driving). However, D has caused the driving to take place in circumstances that make the driving a criminal offence. D has caused P to commit a no-fault offence.

4.32 By contrast:

Example 4J

D invites P to dinner. P drives to D's home and D knows that P will be driving back to his house. D generously refills P's glass of wine regularly. In fact, D is very anxious that P drinks plenty of alcohol because D and P are applicants for a position that requires the post holder to have a current driving licence. P drives home, is breathalysed and found in excess of the prescribed limit. P is disqualified for three years from holding or obtaining a driving licence.

In this example, P was aware of what he was drinking and acted as an autonomous and fully informed individual. Consequently, D is guilty of the principal offence committed by P because D has assisted and encouraged but has not caused P to commit that offence.

The person that D intended to commit the no-fault offence need not be P

4.33 As with the statutory doctrine of innocent agency, it does not have to be D's intention that the offence be committed by P as opposed to some other person:

Example 4K

D is at a party with P and X. P and X are drinking non-alcoholic drinks as they will be driving home. D is aware of this. D, who hates X, slips a large vodka into what he thinks is X's glass. In fact, the glass is P's. P leaves the party and drives home. He is stopped, breathalysed and found to be over the limit. Ultimately, P is convicted of driving with excess alcohol.

D ought to be guilty of causing P to commit a no-fault offence. D's culpability is in no way reduced by the fact that he was mistaken as to who would drink the vodka. It should suffice that D intended that a person should commit the offence.

D's attitude towards the commission of the no-fault offence

4.34 We have considered whether it should suffice if D knew or believed that his or her behaviour might cause a person to commit a no-fault offence. In Blakely and Sutton v DPP^[23] the Divisional Court suggested that such a state of mind would fix D with secondary liability for procuring the commission of a no-fault offence.^[24]

4.35 In the CP,^[25] the Commission said that, "it would seem to be correct" that D could be liable on the basis of foreseeing a risk that the no-fault offence might be committed. Respondents expressed differing views as to how the offence might be defined.

4.36 Notwithstanding the decision in Blakely and Sutton V DPP, we believe that the basis of liability would be too wide if it encompassed foresight of a risk of P committing the offence. At the same time, we believe that the basis of liability would be too narrow if it was restricted to cases where D intends P to commit the offence. Admittedly, in most cases D will be acting in order to bring about the commission of the offence. However, we see no reason why D should not also be liable if he or she believed that his or her behaviour would cause P to commit the no-fault offence.

Recommendation^[26]

4.37 We recommend that:

(1) there should be an offence of causing the commission of a no-fault offence which D would commit if he or she caused another person to commit a no-fault offence and

(a) it was D's intention that a person should commit the offence; or

(b) D knew or believed that his or her behaviour would cause a person to commit it;

(2) a person convicted of the offence should be liable to any penalty for which he or she would be liable if convicted of the no-fault offence concerned.

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Note 1    Attorney-General’s Reference (No 1 of 1975) [1975] QB 773, 780.    [Back]

Note 2    The exception would be cases where D encourages P to commit an offence and the encouragement takes the form of threatening P with violence.    [Back]

Note 3    For our reasons, see paras 4.11 to 4.13 below.     [Back]

Note 4    A further example is rape. The law defines rape in such a way that a woman cannot commit the offence as a principal offender – see Sexual Offences Act 2003, s 1.    [Back]

Note 5    In the example, the relevant offence is abusing a position of trust and engaging in sexual activity with a child contrary to Sexual Offences Act 2003, s 16. In the example, it is assumed that P has good reason to believe what he is told by D. Therefore, P is an innocent agent of D.    [Back]

Note 6    Cogan and Leak [1976] QB 217; Millward [1994] Criminal Law Review 527; DPP v K and B [1997] 1 Cr App R 36.    [Back]

Note 7    Principles of Criminal Law (4th ed 2003) p 423.    [Back]

Note 8    Duress is a complete defence to all offences apart from murder, attempted murder and possibly some forms of treason.    [Back]

Note 9    Provocation and diminished responsibility are partial defences to murder. If successfully pleaded, they result in a conviction for manslaughter.    [Back]

Note 10    Criminal Law: A Criminal Code for England and Wales (1977) Law Com No 177, cl 26 (1)(c).    [Back]

Note 11    Clause 8(1) of the Bill provides that encouraging a person to do an act includes doing so by threatening that person. Accordingly, under our scheme, in cases of duress D would have ‘encouraged’ P.    [Back]

Note 12    [1974] QB 776.    [Back]

Note 13    [1987] AC 417.    [Back]

Note 14    See example 2H in Part 2, para 2.18 and Appendix B, para B.10.    [Back]

Note 15    An example provided by Professor K J M Smith, A Modern Treatise on the Law of Criminal Complicity (1991) p 98.    [Back]

Note 16    Above, p 98.    [Back]

Note 17    Criminal Law: A Criminal Code for England and Wales (1977) Law Com No 177, cl 26 (1).    [Back]

Note 18    See para 5.105.    [Back]

Note 19    In DPP v H [1997] 1 WLR 1406 the Divisional Court held that insanity is not a defence to a no-fault offence. Accordingly, if D causes P, who is insane, to commit a no-fault offence, P is guilty of the offence and D is also guilty of the offence as a secondary party. Simester and Sullivan, Criminal Law Theory and Doctrine (2nd ed 2003) p 178 is very critical ofDPP v H.    [Back]

Note 20    Principles of Criminal Law (4th ed 2003) p 438.    [Back]

Note 21    Clause 4 of the Bill and clause 8(b) of the Supplementary Bill.    [Back]

Note 22    Para 4.196.    [Back]

Note 23    [1991] RTR 405.    [Back]

Note 24    It was a very unusual case in that, in ‘lacing’ P’s drink, it was D’s intention that P should not drive. Unfortunately, P drove off before D could tell him what she had done. In the CP, the Commission said that it thought that Blakely and Sutton v DPP was an accurate statement of the law. However, not only were the observations of the Divisional Court unnecessary to the decision but they are difficult to reconcile with the ‘procuring’ case of A-G’s Reference (No 1 of 1975) [1975] QB 773, a decision of the Court of Appeal.     [Back]

Note 25    Para 4.195.    [Back]

Note 26    Clause 5 of the Bill and cl 6(2) of the Supplementary Bill.    [Back]

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