Attorney General's Reference (No 1 of 1975)

Facts

The respondent laced his friend's drinks with extra measures of spirit, knowing that the friend would be driving home. The friend did not know that his drink had been laced. He drove with a quantity of alcohol in his blood above the legal limit.

History

The respondent was charged with procuring the commission of the offence of driving with excess alcohol. The trial judge held that there was no case to answer because the principal had no knowledge of what was being done, and the respondent was acquitted. The Attorney General referred the point of law to the Court of Appeal under section 36 of the Criminal Justice Act 1972, which left the acquittal undisturbed.

Issue

Whether a person who without the knowledge of the principal offender causes that offender to commit the offence can be guilty of procuring the offence, or whether secondary liability requires a meeting of minds or common purpose between the parties.

Held

The Court of Appeal answered the reference by holding that a person may be guilty of procuring an offence even though the principal does not know that the offence is being procured, so long as the defendant causes the commission of the offence.

Ratio

• To procure means to produce by endeavour. Procuring an offence requires that the defendant sets out to see that the offence happens and takes the appropriate steps to produce that happening, so that there must be a causal link between what the defendant does and the commission of the offence by the principal.
• There need not be any conspiracy or common design between the secondary party and the principal, and the principal need not know that someone is procuring his act.

The judgments

Key reasoning

• The statutory words aid, abet, counsel and procure are to be given separate meanings, and while the first three generally require some consensus between the parties, procuring does not.
• An example of procuring without the knowledge of the principal is the case of a person who causes another to commit the offence by deliberate action which brings it about, so that it would be wrong to exclude liability merely because the principal was unaware.
• Causation is the necessary limit on liability: the commission of the offence must be a consequence of what the defendant did.

Where it fits in the module

The case is central to complicity because it separates procuring from aiding, abetting and counselling and thereby shows that secondary liability does not always depend on shared intention. It supports the argument that complicity is a matter of causal contribution plus mens rea, and it links to the debate on the derivative nature of accessorial liability and the position of innocent agents. It is also the starting point for later discussions of whether a secondary party needs the principal to have committed the offence with a guilty mind.

Criticisms

• Stretching procuring to cover cases where the principal is an innocent instrument blurs the boundary between complicity and liability as a principal acting through an innocent agent.
• The requirement that the defendant causes the offence is stated without a clear account of causation, leaving doubt about the effect of the principal's free and informed choice, which in other contexts breaks the chain.
• The decision depends on the offence of driving with excess alcohol being one of strict liability, so it provides limited guidance for offences requiring mens rea in the principal.