Rook, R. v

Facts

The appellant and others agreed, for payment, to kill a woman on behalf of her husband. The appellant took part in the planning and preparations, including meetings and arrangements about how and where the killing would be done. On the day of the killing he did not turn up, and the others carried out the killing without him. He said he had never intended the killing to happen and hoped to obtain money without it being done.

History

Convicted of murder in the Crown Court; he appealed against conviction, arguing misdirection on the mental element and on withdrawal.

Issue

(1) Whether a secondary party who assists in advance must intend that the offence be committed, or whether it suffices that he knew or foresaw it would or might be committed. (2) Whether absence on the day of the offence amounts to an effective withdrawal.

Held

Appeal dismissed and the murder conviction upheld.

Ratio

• A secondary party who has provided assistance in advance is liable if he contemplated the commission of the offence as a real possibility; it is no defence that he hoped or privately intended that it would not be carried out.
• Withdrawal requires, at the least, unequivocal communication of the intention to abandon the common purpose to the other parties; mere absence on the day, without any communication, is not enough.

Key reasoning

• National Coal Board v Gamble [1959] 1 QB 11 shows that a person who knowingly assists is not relieved of liability because he is indifferent to, or would prefer, that the offence not occur.
• The authorities on joint enterprise, including Chan Wing-Siu [1985] AC 168 and Hyde [1991] 1 QB 134, treated contemplation of the crime as a real possibility as sufficient for a secondary party, and the court saw no reason to apply a stricter test to one who assists in advance than to one present at the scene.
• Following Becerra (1975) 62 Cr App R 212 and Whitefield (1984) 79 Cr App R 36, a person who has given assistance must do enough to neutralise it, or at least communicate unequivocally that he is withdrawing; the appellant had done neither, leaving his earlier assistance operating.

Where it fits in the module

In the complicity topic Rook is central to the law on withdrawal, alongside Becerra, Whitefield, Mitchell and O'Flaherty. It also shows the pre-Jogee assimilation of accessorial mens rea to foresight, which students should contrast with the Supreme Court's later insistence on intention and knowledge. It raises the policy question of how far the law should reward late repentance.

Criticisms

• Treating foresight of a real possibility as sufficient set the threshold for murder liability lower for the accessory than for the principal, a point later criticised and corrected in Jogee.
• The withdrawal rule focuses on communication rather than on whether the earlier assistance actually contributed, which may over-include a party whose contribution was negligible.
• Conversely, insisting on communication to dangerous co-conspirators may be unrealistic, and it can be argued that informing the police or taking steps to prevent the crime should be the touchstone.