Blakely and Sutton v DPP

Facts

The defendants added alcohol to the tonic water of a man who had been drinking with them, without his knowledge. Their aim was that, being over the limit, he would not drive home but would stay the night; they intended to tell him what they had done before he left. He drove off before they told him and was convicted of driving with excess alcohol. The defendants were charged with aiding, abetting, counselling or procuring that offence.

History

The magistrates convicted the defendants, applying a test of recklessness in the Caldwell sense as to whether he would drive. The defendants appealed by case stated to the Divisional Court.

Issue

What mental element is required of a person charged with procuring an offence of strict liability committed by another, and in particular whether recklessness in the objective Caldwell sense suffices.

Held

Appeal allowed and the convictions quashed, because the justices had applied the wrong test.

Ratio

• A secondary party, including one charged with procuring, must at least contemplate the commission of the principal's offence; objective (Caldwell) recklessness as to whether the principal will commit it is not sufficient, even where the principal's offence is one of strict liability.

Key reasoning

• Attorney-General's Reference (No 1 of 1975) [1975] QB 773 established that procuring means setting out to see that something happens and taking appropriate steps to bring it about, and that procuring can occur without any consensus between procurer and principal.
• Although the principal's offence required no mens rea, the liability of the secondary party depends on his own mental state, as established in Johnson v Youden [1950] 1 KB 544 and National Coal Board v Gamble [1959] 1 QB 11.
• The defendants had not intended that he should drive; on the contrary their plan was to prevent it, so applying Caldwell recklessness would impose secondary liability on those who failed to consider an obvious risk, which the law of complicity does not permit.

Where it fits in the module

In the complicity topic Blakely and Sutton is paired with Attorney-General's Reference (No 1 of 1975), the spiked drink case where procuring was established. Together they show the distinct character of procuring as causing an offence without agreement, and the requirement that the accessory have mens rea even when the principal needs none. It also feeds discussion of the derivative theory of complicity.

Criticisms

• The court left unclear whether contemplation suffices for procuring or whether intention is required, which matters because procuring is the form of complicity closest to causation.
• The outcome lets defendants escape liability despite creating the very danger the drink-driving offence targets; it may be argued a direct endangerment offence would capture their fault better than complicity.
• Requiring mens rea of the accessory where the principal is strictly liable creates an asymmetry, though it is defensible because the accessory's liability is founded on his own culpable contribution.