R v Millward

Facts

Millward instructed an employee to drive a tractor to which a trailer had been attached by a hitch that was defective. While the tractor was being driven on the road, the trailer came away and collided with a car, killing its driver. The employee, who drove the tractor, was acquitted of causing death by reckless driving, and Millward was charged on the footing that he had procured the offence.

History

At trial the driver was acquitted and Millward was convicted of aiding, abetting, counselling or procuring causing death by reckless driving. He appealed to the Court of Appeal on the ground that his conviction was inconsistent with the acquittal of the principal.

Issue

Whether a secondary party can be convicted of procuring an offence committed by the principal when the principal has been acquitted, and whether the principal's acquittal made the conviction logically inconsistent.

Held

The appeal was dismissed and the conviction stood. The principal's acquittal did not prevent the conviction of the secondary party, because the actus reus of the offence had been committed by the driver, caused by the secondary party's procuring.

Ratio

• The acquittal of the principal does not necessarily preclude the conviction of a secondary party who has procured the offence, where the physical act constituting the offence has been committed and the absence of a conviction rests on the principal's lack of fault.
• A defendant who with the necessary mens rea causes the actus reus of an offence to be carried out through another, who is himself innocent of fault, is guilty of the offence as a secondary party or by procuring.

Key reasoning

• The offence of causing death by reckless driving required a driving act that caused death and the mental element of recklessness. The actus reus was present because the vehicle was driven and death was caused, while the driver lacked the mens rea.
• The farmer knew of the defect and caused the driver to take the tractor on the road, so he supplied both the mental element and the causal contribution to the offence, and it was irrelevant that the driver had not shared his knowledge.

Where it fits in the module

Millward is directly relevant to the debate in complicity about whether secondary liability is derivative. It shows that the law may attach liability to a person who stands behind another even if the other is not guilty, which complicates the idea that accessorial liability depends on a crime by the principal. It raises the question of whether the defendant is better seen as a principal acting through an innocent agent or as a secondary party, and what the practical differences are.

Criticisms

• The decision sits uncomfortably with the idea that secondary liability is derivative from the principal's offence, since the principal here was not guilty.
• It leaves open whether the farmer should be convicted as a principal through an innocent agent or as a procurer, a distinction that matters for the limits of the doctrine.
• Allowing a conviction where a jury has acquitted the principal on essentially the same facts risks inconsistent verdicts and calls for careful explanation of why the mens rea differences justify the outcome.