Facts
Calhaem hired another person, Zajac, to kill a woman. Zajac went to the home of the woman with a hammer, and she was killed. Calhaem was charged as a secondary party with counselling the murder.
History
Calhaem was convicted at trial of counselling the murder and appealed to the Court of Appeal against the direction given to the jury on the connection between the counselling and the offence.
Issue
Whether a person who counsels an offence can be convicted of that offence as a secondary party only if the counselling caused the offence to be committed, or whether it is enough that the offence was committed by the person counselled within the scope of the counselling.
Held
Appeal dismissed and the conviction upheld. There need not be proof that the counselling was a cause of the offence, but there must be a connection between the counselling and the commission of the offence.
Ratio
- For liability as a counsellor under the Accessories and Abettors Act 1861 it is not necessary to prove that the offence would not have been committed but for the counselling. It is necessary to show that the principal offence was committed by the person counselled, within the scope of the counselling, and that there was contact between the counsellor and the principal.
The judgments
Parker LJ (lead)
Delivered the judgment of the court. He held that counsel in the statute should be given its ordinary meaning of advising or soliciting, that it does not require causation in the sense contended for, but that the offence must be committed in consequence of the counselling and within its scope.
Key reasoning
- The word counsel in the 1861 Act is not a term of art requiring a causal link, and it describes a person who advises, solicits or encourages the commission of an offence.
- There must be a link between the counselling and the principal offence, because a person cannot be guilty as counsellor if the principal acted without knowledge of the counselling or on a basis unrelated to it.
- Whether the principal acted in consequence of the counselling is a question of fact for the jury, which may find a link even where the principal had mixed motives.
Where it fits in the module
In the Complicity topic the case anchors the debate over whether secondary liability for encouragement requires the encouragement to cause the offence. It should be read with the general law on aiding and abetting, and with the later statutory offences of encouraging or assisting crime in the Serious Crime Act 2007, which make the encouragement an offence in itself and thus reduce reliance on the causal question.
Criticisms
- Dispensing with causation makes the counsellor liable for an offence which may have happened anyway, which departs from the general principle that a person should be held responsible for a result to which his conduct contributed.
- The requirement of a link without causation is vague, since the court said little about how close the connection must be, and later decisions have found the formula hard to apply.
- The decision treats counselling like aiding, but the case against dispensing with causation is stronger for encouragement, where the effect on the mind of the principal is uncertain.
Written with AI (claude-sonnet-5.5 (Claude Code writer)) on 1 November 2026, reviewed for errors by a second model (claude-sonnet-5.5 (Claude Code checker)). Read the case itself at [1985] QB 808, [1985] Crim. L.R. 303. Spotted an error? Tell us.