JF Alford Transport Ltd & Ors, R v

Facts

The appellants were a road haulage company, its managing director and its transport manager. Several of the company's drivers made false entries on their tachograph records, which record driving hours. The prosecution case was that the appellants must have known of the falsification and, by taking no steps to stop it, aided and abetted it, the falsification serving the company's commercial interest in getting more work out of its drivers.

History

The appellants were convicted of aiding and abetting the drivers' offences of making false entries on record sheets, and appealed.

Issue

In what circumstances does a person who has a right to control the principal offender become a secondary party by failing to exercise that control; and what must the prosecution prove as to the accessory's state of mind, in particular whether it must prove a purpose or motive that the offence be committed.

Held

Appeals allowed; the convictions were quashed as unsafe.

Ratio

• Where a defendant has a right to control the actions of the principal and, knowing of the principal's offending, deliberately refrains from exercising that control, the inaction may amount to positive encouragement and so to aiding and abetting. The accessory must know the essential matters constituting the offence and intend to do the acts which he knows are capable of assisting or encouraging it; the prosecution need not prove that he acted with the purpose or motive of having the offence committed.

Key reasoning

• The court drew on the line of authority, including Tuck v Robson [1970] 1 WLR 741 and Du Cros v Lambourne [1907] 1 KB 40, that a person with power to control another's conduct who knowingly allows an offence to be committed in his presence or under his authority may be guilty as an accessory.
• Following National Coal Board v Gamble [1959] 1 QB 11, the mental element for aiding and abetting is an intention to do the act of assistance with knowledge of the circumstances; motive is irrelevant, and the accessory need not desire the offence.
• Evidence of a commercial motive, such as the benefit to the company of drivers working beyond lawful hours, can support an inference that the managers knew of the falsification and chose to let it continue, but the jury must be sure of that knowledge in respect of each defendant.

Where it fits in the module

In the complicity topic, the case addresses two recurring questions: when an omission can count as assistance or encouragement, and how demanding the accessory's mens rea should be. It shows liability by inaction being confined to those with a right of control, and it illustrates the position, later debated in Jogee, that knowledge of the essential matters and a deliberate choice to help or permit suffice without any purpose that the crime occur.

Criticisms

• Treating a failure to intervene as encouragement depends on a fiction: the principal may have no idea that the supervisor knows, in which case the inaction cannot actually have encouraged him.
• Allowing knowledge to be inferred from commercial motive risks convicting managers on the basis of what they stood to gain rather than what they actually knew, which may be particularly harsh for those in senior positions remote from day-to-day operations.
• Rejecting any purpose requirement makes secondary liability very broad for those who supply services or employment to wrongdoers, and the right-of-control limit is not clearly defined.