B e f o r e :
LORD JUSTICE POTTER MR JUSTICE HOOPER MR JUSTICE ASTILL ____________________
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MR JOHN FOY QC appeared on behalf of the APPELLANT MR DAVID FARRELL QC appeared on behalf of the CROWN Hearing date : 19 February 2004 ____________________
HTML VERSION OF JUDGMENT ____________________
Crown Copyright ©
Lord Justice Potter:
Introduction
On 17 December 2002 in the Crown Court at Nottingham before Mackay J and a jury the appellant was convicted by a majority verdict of 10 to 2 of murder upon Count 1 of an indictment in which he appeared charged with a number of co-defendants. On 13 January 2003 he was sentenced to life imprisonment. An alternative count of Assisting An Offender (Count 5) remained on the file under the usual terms. He appeals against conviction by leave of the single judge who granted limited leave (see further below).
There were two co-defendants to the charge of murder, particulars of which stated that George Black, Mary Black and the appellant "did aid and abet, counsel and procure X to murder Patrick George Moore" on 16 October 2001. X (aged 16) pleaded guilty to murder on a separate indictment and was detained during Her Majesty's Pleasure under s.28 of the Crime (Sentences) Act 1997. He was the principal prosecution witness at the trial. George Black was convicted of murder and sentenced to life imprisonment. Mary Black was acquitted of murder. The facts relevant to the charge of murder were as follows.
During the early morning of 16 October 2001, X entered the Peterborough home of Patrick Moore and shot him in the head at close range as he slept in his bed. Moore was killed instantly.
It was the prosecution case that X was a drug runner for George Black who was a major dealer in drugs and that he was ordered by Black to kill Patrick Moore who was an associate drug dealer after an argument had developed between them on the previous day. It was alleged that the appellant, who also sold drugs for Black, was an accessory to the murder in that he had transported X and a gun with which he shot Moore to a caravan near to Moore's home so that X could wait for an opportunity to carry out the killing (Count 1).
After the murder the appellant had assisted with the retrieval and disposal of the murder weapon and had also assisted X and two other co-defendants Johal and Gray (separately charged with assisting an offender) by allowing them to clean themselves up at his home after they had moved the body of the deceased and by destroying the tea towels which the co-defendants had used to clean their hands following disposal of the body.
It was the defence case that the appellant (who did not give evidence) had known nothing of the plan to murder the deceased and that he had simply given X a lift on the night in question. He had not seen any weapons. It was denied that he had assisted in the plan to murder the deceased and suggested on his behalf that the Crown's evidence showed that he had hindered the plan and (despite the absence of any evidence from him or suggestion in his interview) he had distanced himself from it by introducing a delay of around 12 hours which could have prevented the murder from taking place after X had been left alone in the caravan for a long period during which he considered what Black had asked him to do.
So far as Count 5 was concerned, it was not admitted that the appellant had assisted in the disposal of the murder weapon and was suggested on his behalf that he had destroyed the tea towels in an attempt to protect himself after noticing blood on the men who had turned up at his home.
George Black (who gave evidence) denied that he had ordered X to kill the deceased but admitted that he had assisted in the removal of the deceased's body in order to help X avoid detection. All other co-defendants (except Johal who pleaded guilty to assisting an offender) denied any involvement.
The jury were directed that the issues which they should consider in deciding whether the appellant was an accessory to murder and whether he had aided, abetted, counselled or procured X to murder were:
i) Did the appellant assist X to commit murder by taking him and the gun to the caravan which was situated near to the home of the deceased?
ii) Did he take X to the caravan deliberately and in the knowledge that it would assist him to kill or cause really serious injury to the deceased or while realising that there was a real possibility that he might do so.
The Evidence
The relevant evidence can be summarised as follows.
X said that he had met Black shortly after Black's release from custody in 1999 and had lived with Black and his girlfriend Lynn Teat in Peterborough. In return for board, food and drugs he had worked as a drug runner for Black. The appellant had also sold drugs for Black. X said he knew Moore, the deceased, as another drug dealer who had known Black since childhood. X and Lynn Teat gave evidence concerning an argument between Black and the deceased over the telephone.
Lynn Teat said that shortly after the call, in the late afternoon, Moore had arrived at the home she shared with Black. Black's mother Mary was also present. An argument developed between Moore, Black and Mary Black in the street. Black had a knife and Moore had a metal baton. At some stage Moore had driven his car at Mary Black. As he was leaving, she saw Black make a gun gesture towards him. Mary Black called the police, although she claimed that she did not know the identity of the man who had threatened her.
Lynn Teat said that later that evening she was alone in the house with her children when Moore turned up again and told her that Black had "fucked with the wrong man this time". She begged him to leave and the police again arrived. She also failed to give Moore's name to the police.
X said that during that Monday evening he was contacted by Black who asked him to return home. X was taken by a man called Stuart Liquorish to Mary Black's house where he was given two parcels. He and Liquorish returned the parcels to Black and put them on the floor of the dining room. Black opened one and took out a shotgun. X said that the other, unwrapped, parcel also contained a gun. Black then telephoned the appellant and asked him to come over on his motorbike and to bring another crash helmet. The appellant arrived at Black's house and, according to X, had looked a bit shocked on seeing a loaded weapon on the floor. Black then told the appellant
The appellant's face had dropped at this.
X said that Black threw him a yellow jacket, told him to put it on and showed him how to put the gun down inside his trouser leg. He also gave him a woolly glove with five cartridges. Black then told him to knock on the front door of the deceased's house and shoot him three times. The appellant was told to wait round the corner and then to bring X back. However, the appellant suggested an alternative plan and said that he knew someone with a caravan around the corner from the deceased where X could go. Black agreed and told him to sort it out and see whether X could stay there. Black then gave X a silver phone and said he was to call if there were any problems. X and the appellant then left on the appellant's motorbike.
X said that the appellant took him on his motorbike to a house which had a caravan in the front. The appellant then spoke to someone. He told X that he had given the person some heroin and that X would be okay to stay in the caravan. The appellant then left and a woman let X into the caravan and gave him a duvet. He tried to call Black but the phone did not work. While in the caravan he was thinking of trying to get out of the killing and had spent all night undecided.
It was admitted that at 10.50pm on 15 October, the appellant had checked into a hotel in Hadden. His girlfriend Heidi Smith confirmed that he had stayed in various hotels for a few nights before, due to difficulties in their relationship.
X said that early in the morning of the next day, Tuesday 16 October, Black visited the caravan with a woman named Sharon who gave Black a hacksaw and he cut down the barrel of the gun. He then told X
X said that he wanted to tell Black that he did not want to do it but Black had stood by the bed with a gun and shot it with the duvet wrapped round the gun. X was shaken by this and took it as a message that, if he had not done as he was told, "it could have been me".
Black left a mobile phone with X and went away. X reloaded the gun and fell asleep. He was woken by a call from Mary Black who said that George had asked her to call him and tell him "not to forget to do a good job". X said that, spurred on by this call, he left within a few minutes and went to the home of the deceased.
On arriving there he knocked at the front door but there was no reply. He noticed Moore's car was parked in front. He started to walk back to the caravan and then returned to the house of the deceased and went round to the back of the property where he noticed that a panel in the back door had been blocked off after a previous raid by the police. He kicked at the panel and entered the house. He found Moore asleep in the main bedroom. As X reached his side, Moore opened his eyes and jumped forward. However X pulled the trigger and shot him in the head. He then ran back to the caravan. He then went to the house of a girl called Sharon who made him some breakfast. He telephoned Black who asked him where he was and whether he had done it. He replied that he had. Black told him to stay put and that he would send Stuart Liquorish. Liquorish arrived and collected X. X had left the gun and cartridges under the mattress in the caravan. Thereafter X and others removed Moore's body and concealed it in a shallow grave in a wooded area.
On Wednesday 17 October Black told X and the appellant to return to the caravan, collect the gun and bullets and get rid of them. X and appellant did as they were told. The appellant obtained the key. Black telephoned and told X to stay at the appellant's house. X and the appellant collected the gun and cartridges from the caravan and returned the key. They walked back to the appellant's house across some fields.
Heidi Smith said that after receiving the initial call from Black on the evening of 15 October, the appellant was "pissed off" and said "Oh, for fuck's sake, not again." and then left on his motorbike. She saw the appellant on Tuesday 16 October after he had spent the night at the Sleep Inn. He seemed jumpy and agitated and told her that Black had asked him to take X to Orton on his motorbike and that he had tried everything to get out of it. He had been told to drop X off at a caravan and that X had had a sawn-off shotgun down his trouser leg. The appellant had said he had not wanted to do it as there was a gun involved. It had been her impression that he had been talking about a real gun and that the appellant had had to do as Black said, as Black had been walking round his living room with a gun in his hands and the appellant was afraid that if he refused he would get shot himself.
Heidi Smith said that on the following Friday morning two men arrived at her house with X. She had seen blood on the jacket of one, an Asian (Johal). Later, she overheard the appellant, X and the two men whispering in the kitchen about a body, a hole in the head, blood and feeling sick. After some 15 minutes the appellant had walked them to their car and they had left. The appellant came back and told her that they had been to pick up a gun and that he had had to show them where it was after X had been unable to remember. She had understood that they had taken the gun in the car with them though she had not seen it. The appellant asked her to wash the tea towels which the men had used to wash their hands while at the house. He then took them to the woods, tore them up and scattered them.
Vanessa Hawkes, a friend of Heidi Smith, gave evidence and said that she had been present when the appellant had received the call from Black telling him to collect X. She said she could tell from the fear on his face that he had not wanted to do it. He said he had no choice and then left. She agreed she was a drug user who suffered from depression but said that she remembered that night. She also said that as the days went on she was told more things about the murder. The appellant told her that he had been the person who took X to do the murder at the deceased's house and that Black had been walking about with a gun while high on cocaine. Heidi Smith had also telephoned her on Friday 19 October when the three men had visited her house.
Following the arrest of the appellant on 31 October 2001 he was interviewed and denied all knowledge of the murder. He said that he used to buy heroin from Moore and had last seen him around two months before. He said that Black and Lynn Teat had visited him on a Thursday or Friday night and said they were going to London to look at property. Black had told him about Moore coming to the house and shouting and kicking the door. During the week of 15 October the appellant said he stayed in a hotel as he had been having problems with his girlfriend. He had lost his motorcycle on around 11 October.
He was rearrested and re-interviewed on 30 November. He said he had known X for two to three months and had only met him on two or three occasions. He denied ever having taken him to Orton on his motorcycle with the gun and said he knew nothing about the removal of the body.
Next day however, he admitted at interview that he gave X a lift to Orton on his motorcycle. However, he said "There was no guns laying on the floor, there was nothing else laid out there, nothing." He then said that he had picked X up outside Black's house at around 7.00pm. X did not have a gun on him. He had dropped him off at the Orton Centre. He did not name the person who had asked him to collect X. He repeated he had simply given X a lift and that as far as he knew there was no gun (c.f. the evidence of Heidi Smith at paragraph 23 above). He said he had not given this account in his previous interviews as he did not want to be remanded in prison and known as a grass.
Submission of No Case
At the end of the prosecution case it was submitted for the appellant that there was no case to answer. It was put on two bases. First, that an accessory before the fact could not be guilty if, at the time when he provided the assistance it was uncertain as to whether an offence was going to be committed by virtue of the fact that the principal offender had not formed his murderous intent. The position was not the same as in a case of 'joint enterprise' in which two persons have already embarked upon and actually engaged in a course of criminal conduct in the course of which someone is killed c.f. : R v Powell and English [1999] 1 AC 1 . By contrast, as in this case, the service rendered by the accessory may be complete at a time before the principal has formed a murderous intent, the accessory no longer being engaged in the criminal purpose or having any interest in it. It was submitted that it would be unfair if the act of an accessory were to become criminal depending on the will of another person over whom he had no control. In the instant case, the appellant's act was equivocal. Although, according to X the appellant had been told by Black to "take X over there because Pat's going to be shot, X's gonna shoot him", at the appellant's suggestion the plan was modified by his taking X to a caravan where he would wait until carrying out the murder. X said in evidence that he harboured reservations about carrying out the shooting (however, it was accepted he had not expressed them to anyone). The murder was not carried out until many hours after the appellant had left him at the caravan and not until a visit from George Black and a telephone call from Mary Black had strengthened his resolve. Thus X intent was not formed till well after the time of the appellant's acts of assistance.
The second basis of the submission was that in any event, the appellant's acts were insufficient to amount to aiding and abetting murder in that the prosecution failed to prove that what the appellant had in fact aided was the commission of murder. It was submitted that the prosecution evidence showed that the appellant had only reluctantly taken X to the caravan, the caravan being part of his own idea to inject delay into the scheme rather than to encourage it. The judge could only conclude from that that the appellant had tried to prevent rather than to assist the murder, which had been hindered rather than assisted by this delaying tactic.
The judge rejected those submissions. He applied the approach which he found in the case of R v Rook [1997] Cr App R 327 in which this court held that, as in the case of joint enterprise where both parties are present at the scene of the crime, it is not necessary for the prosecution to show that a secondary party who lends assistance or encouragement before the commission of the crime intended the victim to be killed, or to suffer serious injury, provided it was proved that he foresaw the event as a real or substantial risk and nonetheless lent his assistance. In that case it was held that the fact that the appellant absented himself on the day the murder was carried out by the appellant who did the killing did not amount to an unequivocal communication of his withdrawal from the scheme contemplated at the time he gave his assistance.
In respect of the second limb of the submission, the judge accepted the argument of the prosecution that, whether the appellant's actions had actually assisted or hindered the principal offender in carrying out the killing was a question of fact within the province of the jury. The judge could not say that no jury addressing its task properly could form the view that the appellant's actions had amounted to the knowing provision of assistance.
Following rejection of those submissions, the appellant did not give evidence; nor did he call any witnesses on his behalf. Black gave evidence on his own behalf denying that he had ordered X to kill the deceased and said that X had been involved with Liquorish and another man Burroughs in a plan to shoot the deceased and that he had advised against it. He said that after the killing X had told him about it. X said that he had got the appellant to give him a lift and that he had stayed at a caravan in Orton belonging to Sharon, a woman whom Black knew. Black had assisted with the removal of the body in order to help X to avoid detection. The remaining co-defendants did not give evidence.
The judge's direction
The judge gave the jury written directions in relation to the various charges and issues which confronted them, as well as a very thorough summing-up. In relation to Count 1, so far as affected this appellant, his written directions were as follows:
The Grounds of Appeal
The grounds of appeal submitted to the single judge read as follows:
Ground 1 : The judge should have upheld a submission of no case to answer made at the conclusion of the prosecution case on the basis that (a) what the appellant did was insufficient to amount to aiding and abetting the murder as it was too remote in time and place to the killing; and (b) was performed at a time when the principal offender (X) had not yet formed the intent to commit any criminal offence.
Ground 2 : In summing up the judge failed to provide any analysis of what constituted aiding and abetting in order to assist the jury to decide what would be sufficient to constitute the offence. In particular, he failed to invite the jury to consider whether there was a sufficient proximity between the appellant's act and the murder or whether any aid was so minimal that it was insufficient to constitute the offence. It is argued that the jury were therefore left with the impression that any assistance no matter how remote or slight would be sufficient to establish this element of the offence.
Ground 3 : The judge misdirected the jury in relation to the mental element required to constitute the offence of aiding and abetting murder and failed to direct that:
The single judge granted leave upon ground 1(b) only. Before this court Mr Foy QC renewed the application for leave to appeal in respect of the grounds in respect of which leave was refused and we have granted such leave. In respect of ground 1(a) and ground 2, he also seeks leave to adduce additional evidence in the form of a statement from X as to additional activities of his own and of the victim between the time the appellant rendered his assistance and the time of the murder.
The Law
Count 1 of the indictment alleged inter alia that the appellant "did aid and abet, counsel and procure John X to murder" the deceased. The appellant was charged under s.8 of the Accessory and Abettors Act 1861 as amended by the Criminal Law Act 1977:
Persons who come within that statutory genus are variously designated 'accomplices', 'accessories' or 'secondary parties'. It seems to us that, in one respect at least, the term 'secondary parties' is preferable because it emphasises that the secondary liability of an accomplice is derivative from the liability of the principal offender. Further, because the common law relating to the liability of accomplices concerned itself with two types of principal "the principal in the first degree" and the "principal in the second degree", (which distinction is irrelevant in the instant case), we shall use the term 'perpetrator' rather than 'principal offender'.
Before the abolition of the distinction between felonies and misdemeanours by s.1 of the Criminal Law Act 1967 , it was necessary to distinguish, so far as felonies were concerned, between principals in the first degree (now simply principals), principals in the second degree (in broad terms corresponding to former aiders and abettors) and accessories before the fact (broadly speaking counsellors and procurers) which latter two categories are now simply accessories. While the old cases on participation in felonies remain valid authorities on the limits of criminal liability, the former distinctions between the various categories of secondary parties are now otiose: see Howe [1987] AC 147 in which the House of Lords disapproved of the decision in Richards [1974] QB 776 which had appeared to perpetuate the distinctions for certain purposes. So far as the charging of secondary parties is concerned, it is frequently advisable (as was done in this case) to use the 'catch-all' phrase 'aid, abet, counsel or procure' because the shades of difference between them are far from clear.
On the other hand, it is necessary to preserve the distinction between the perpetrator and secondary parties because the mental element or mens rea for the secondary party is not necessarily the same as for the perpetrator. This stems from the fact that the actus reus of being an accessory involves two concepts: (a) an act (or possibly an omission) which aids, abets, counsels or procures (b) the commission by the perpetrator of the principal offence.
Mens Rea
The required mens rea is the same for aiding, abetting counselling and procuring: see R v Rook [1993] 2 All ER 955 and [1993] Crim LR 698 and commentary thereto. As stated in Smith & Hogan : Criminal Law (10 th ed)
As to (a) it is necessary to show firstly that the act which constitutes the aiding, abetting etc was done intentionally in the sense of deliberately and not accidentally and secondly that the accused knew it to be an act capable of assisting or encouraging the crime. In this case, as in most cases, the first requirement will not be in issue. The act of taking X to the caravan with the gun was obviously done deliberately. However, on the defence which the appellant sought to advance through his counsel, the second requirement was implicitly in issue in that Mr Foy wished to submit to the jury that the appellant's actions were intended to impede rather than assist.
As to (b), it is now well established that it is not necessary to prove that the secondary party at the time of the act of aiding, abetting etc intended the crime to be committed.
As Devlin J said in National Coal Board v Gamble [1959] 42 CAR 240 at 250:
Thus, if it is proved that the defendant intended to do the acts of assistance or encouragement, it is no defence that he hoped that events might intervene to prevent the crime taking place. So, where the defendant drove the perpetrator to a place where he knew that the perpetrator intended to murder a policeman, his intentional driving of the car to that place amounted to an aiding and abetting of the offence despite his unwillingness that the killing should take place: see Lynch v DPP for Northern Ireland [1975] AC 653 at 678, in which Lord Morris of Borth-y-Gest stated:
It not being necessary to show that the secondary party intended the crime to be committed by the perpetrator, what must be his state of mind vis a vis the commission of the crime? As was stated by Lord Goddard CJ in Johnson v Youden [1950] 1 KB 544 at 446:
He went on to say:
This statement was approved by the House of Lords in Maxwell v DPP for Northern Ireland (1979) 68 Crim App R 128 HL.
Sir Robert Lowry CJ in Maxwell (supra) at 140-141 stated:
But does the secondary party actually have to know that the crime will be committed, as this passage suggests, or is something less sufficient? Lord Simon in Lynch 698G-699B cited Devlin J in National Coalboard v Gamble [1959] 1 QB 11, 20 and continued:
Those words were uttered in respect of a person participating at the time of the commission of the offence by the actual perpetrator. However, in the context of a person charged as an accessory who has rendered assistance prior to the commission of the crime by the perpetrator, the circumstances in respect of which knowledge is sufficient for liability may go wider than that of the specific crime actually committed. This is because, as pointed out in Blackstone's Criminal Practice (2004) at A6.5 (p.75), it is inappropriate and unworkable to require knowledge of the essential matters constituting the offence in a situation where the offence is yet to be committed in the future or by a person of whose precise intentions the accused cannot be certain in advance. It is thus sufficient for the accused to have knowledge of the type of crime in contemplation. Thus where a person supplies equipment to be used in the course of committing an offence of a particular type, he is guilty of aiding and abetting the commission of any such offence committed by the person to whom he supplies the equipment, providing that he knows the purpose to which the equipment is to be put or realises that there is a real possibility that it will be used for that purpose and the equipment is actually used for that purpose: see R v Bullock 38 Crim App R 151 and R v Bainbridge [1960] 1 QB 129.
We turn to Rook. The appellant had been convicted as a secondary party of a so-called contract killing. He was one of a gang of three men who met and agreed the details of a plan to kill the wife of a fourth man on the next day. The appellant did not turn up next day and the killing was done by his two fellows. His defence was that he never intended the victim to be killed and believed that, if he absented himself, the others would not go through with the plan. Lloyd LJ described the evidence against him in this way (page 958):
The trial judge had directed the jury:
Lloyd LJ continued:
The Court disagreed and approved the direction. Lloyd LJ relied, firstly, on two decisions in the Privy Council, which have subsequently been considered by the House of Lords in R v Powell & English [1999] AC 1 , to which we return below. He said:
Those cases, however, like Rook and like Powell and English , are concerned (as the last sentence of the first paragraph quoted shows) with whether the perpetrator has gone outside the scope of a joint unlawful enterprise to commit, for example, robbery or assault, by killing the victim of the intended robbery or assault. Those authorities do not necessarily assist in deciding whether the secondary party was party to a joint enterprise in the first place, which was the issue raised by Mr Foy. We return to this issue later.
Lloyd LJ then went on to find support for his conclusion in DPP for Northern Ireland v. Maxwell [1978] 1 WLR 1350 and on Lynch to which we have already referred for the clearly established proposition that it is not necessary to prove that the secondary party intended the crime to be committed. As to Lynch he said:
As to Maxwell Lloyd LJ said:
Lloyd LJ went on to deal with the written question handed to the jury:
Rook is, in our view, authority for the proposition that it is not necessary to show that the secondary party intended the commission of the principal offence and that it is sufficient if the secondary party at the time of his actions relied on as lending assistance or encouragement contemplates the commission of the offence, that is knows that it will be committed or realises that it is a real possibility that it will be committed.
The issue in the present case is whether, in addition to proving that the act of assistance relied on was deliberate and that the secondary party contemplated the commission of the offence, the prosecution must prove an intention to assist. It was the defendant's case through his counsel that his intention was not to assist, but to hinder, the plan which was apparently in existence between Black and X.
We have already seen that Devlin J, in National Coal Board v Gamble referred to an intent to aid and that in Maxwell , Sir Robert Lowry CJ referred to intentionally lending his assistance in order that the crime shall be committed, in a passage cited with approval by Lloyd LJ in Rook . Although in Rook the endorsement of the passage from Smith and Hogan and of the written direction includes no reference to intent to assist, the Court had earlier approved the direction that the appellant must have done the various things "intending to assist Armstrong and Leivers to commit a murder".
In Criminal Law Theory and Doctrine, Semester and Sullivan , 2000 the authors state that a secondary party must intend "that his conduct will help or encourage P's actions " (page 198). "It is the assistance, not the ultimate crime, that must be intended by" the secondary party.
Blackstone's Criminal Practice 2004 (paragraph A 5.4, page 73) relying upon the passage from Devlin J in National Coal Board v Gamble which we have already cited, also states that there must be an intention to aid. The authors consider the case of Lynch :
The authors then consider the authorities such as R. v Woollin [1999] AC 82 which decide that a person may still intend to do something even though he does not desire it. The authors continue:
Mr Farrell relies upon Lynch, Powell and English and Rook in support of his argument that no such intent is required. We have already examined Rook and conclude that it is not authority for Mr Farrell's proposition. In Powell and English the appeals related, per Lord Hutton at page 16, to:
Lord Hutton cited, amongst other authorities, the High Court of Australia in McAuliffe v The Queen 69 ALJR 621, at 624 for the proposition that "each of the parties to an arrangement or understanding is guilty of any crime falling within the scope of the common purpose which is committed in carrying out that purpose" and concluded at page 27:
However, because Powell and English is another 'joint enterprise' case concerned with the extent of the liability of a secondary party for acts going beyond the scope of a joint enterprise to which he was a party, it does not help the resolution of the instant case in which the question raised was whether there was any intent on the part of the secondary party to assist at all. Mr Farrell did not argue for the Crown that the fact that the Appellant took X to the caravan with a gun, albeit almost certainly an offence against the Firearms legislation, was sufficient in itself to bring the principles in Powell and English into play. The issue was whether the appellant intended to hinder rather than assist in violence against the victim; it was an issue whether there was any common purpose or intention to assist at all.
We return to Lynch . In that case, the principal issue related to the defence of duress. The House by a majority held that the defence of duress was available to a secondary party, a conclusion subsequently overruled in Howe [1987] AC 417 . The second certified question was:
The emphasised words show that the second question was concerned with whether the secondary party must intend the crime to be committed. We have already set out the view of Lord Morris on that issue (see paragraph 45 above).
Lord Simon said at 698F that the majority in the Court of Appeal had held, rightly in his view, that the mens rea "did not involve 'a specific intent'". Lord Simon continued at 698G-699B:
Despite that passage, it seems to us, as to the authors of Blackstone (paragraph 63 above) that Lynch is not authority for the proposition that there does not have to be an intent to assist. We do not think that those words of Lord Simon were intended to go further than the words of Devlin J which he was approving. Lynch was concerned primarily with duress and secondly with whether it was necessary to show that the secondary party intended the commission of the crime committed by the perpetrator.
We are of the view that, outside the Powell and English situation (violence beyond the level anticipated in the course of a joint criminal enterprise), where a defendant, D, is charged as the secondary party to an offence committed by P in reliance on acts which have assisted steps taken by P in the preliminary stages of a crime later committed by P in the absence of D, it is necessary for the Crown to prove intentional assistance by D in the sense of an intention to assist (and not to hinder or obstruct) P in acts which D knows are steps taken by P towards the commission of the offence. Without such intention the mens rea will be absent whether as a matter of direct intent on the part of D or by way of an intent sufficient for D to be liable on the basis of 'common purpose' or 'joint enterprise'. Thus, the prosecution must prove:
Causation
We have so far considered the question of mens rea . So far as causation is concerned (see requirement (a) above), in order to establish the liability of a secondary party, the precise extent to which it is necessary to prove a causative link between the act of assistance alleged against the secondary party and the substantive crime committed by the perpetrator is by no means clearly established in our criminal law. In the case of one charged with 'procuring' an offence, it is clear that a causal link must indeed be demonstrated. In Attorney General's Reference (No. 1 of 1975) [1975] QB 773 the court stated at 780B
Further, in no less an authority than Stephen's Digest (4 th ed) Art 39, it is stated that, not only one who procures but one who 'counsels' or 'commands' is liable, and by implication only liable, when the crime committed by the perpetrator
It has been held that 'counselling' need not be the cause of the commission of the offence in the sense of showing that, without such counselling, the offence would not have been committed: see Attorney General v Able [1984] QB 795 at 812. It has also been held that proffered advice or encouragement which has no effect on the mind of the perpetrator is not counselling: R v Clarkson [1971] 1 WLR 1402. Nonetheless, for secondary party liability there must be some causal connection between the act of the secondary party relied on and the commission of the offence by the perpetrator. In R v Assistant Recorder of Kingston-upon-Hull ex p. Morgan , Lord Parker CJ, in distinguishing the offence of incitement from the liability of an accomplice, observed:
On the other hand, it seems clear that the requirement for a causal connection is given a wide interpretation where a secondary party prior to the crime has counselled or assisted the perpetrator in actions taken by him which are directed towards the commission of the crime eventually committed. In Attorney General's Reference (No.1 of 1975) , when considering the word 'counsel' and giving it its ordinary meaning of 'advise, solicit or something of that sort', this court stated:
It thus appears that in such circumstances liability will be established unless:
per Lord Parker CJ in R v Anderson and Morris [1966] 2 QB 110 at 120, when considering the question of the liability of an accomplice for acts of a perpetrator which have gone beyond the parties' common purpose. Absent some such 'overwhelming supervening event', if the secondary party is to avoid liability for assistance rendered to the perpetrator in respect of steps taken by the perpetrator towards the commission of the crime, only an act taken by him which amounts to countermanding of his earlier assistance and a withdrawal from the common purpose will suffice. Repentance alone, unsupported by action taken to demonstrate withdrawal will be insufficient. Thus, if the secondary party had the necessary mens rea at the time of the act of rendering his advice or assistance, the fact that his mind is 'innocent' at the time when the crime is committed is no defence: see R v Becerra (1975) 62 Crim App R 212. In that case it was stated that any communication of withdrawal by the secondary party to the perpetrator must be such as to serve "unequivocal notice" upon the other party to the common unlawful cause that, if he proceeds upon it, he does so without the further aid and assistance of the withdrawing party: c.f. the position in R v Whitefield (1984) 79 Crim App R 36.
Ground 1(a)
In the light of the principles we have stated we turn to the grounds of appeal. We do not consider that ground 1(a) of the grounds of appeal is made out.
It is common ground that, in relation to the appellant's actions prior to the murder, it was the case for the Crown that, pursuant to the instructions of Black, and as a step towards the contemplated murder of Moore, the appellant had knowingly transported X with a concealed gun to a caravan close to where Moore lived and had arranged for him to stay there as a 'safe house' in which to lie in wait for an opportune moment to go to Moore's flat and kill him. The killing occurred near morning.
It was argued before the judge, as it has been argued before us, that on the prosecution evidence, the jury could not reasonably be satisfied that the assistance afforded by the appellant was still operative in any causative sense when the killing took place. The argument has been put before us on a basis somewhat more elaborate than that apparently advanced to the judge at the time of his ruling, namely (i) that the killing was too remote in time and space for the assistance afforded to be regarded as causally connected with it; (ii) that the effect of what the appellant did was to delay and hinder murder rather than to encourage it; and (iii) that the real trigger for the killing was not the assistance rendered by the appellant at a time when X had (according to his evidence) not fully made up his mind to do the killing, but only the following morning, when, visited early by Black at the caravan, he had his resolution stiffened by Black.
As to point (i), we do not consider that the simple question of a delay of 13 hours or so between the assistance relied on and the occurrence of the killing in any way negatived causation. It is by no means clear on the evidence that, if the appellant had taken X directly to Moore's house, they would have found him there at the time. It was plainly necessary for X to be transported (with the weapon concealed), rather than to make his own way for several miles across town, armed with a shotgun. It was also necessary for him to have a 'safe house' within the vicinity for himself and for the gun until the killing took place. The change of the original plan in that last respect was no more than a different method adopted by agreement towards the same stated end, namely the murder of Moore. As to (ii) and (iii), on the evidence before the judge, no intervening event occurred which diverted or hindered the execution of the plan; the visit to the caravan next day by Black for the purpose of sawing off the shotgun was no more than a further step towards the execution of the overall plan and one which again needed to be carried out in the safety of the caravan which the appellant had been instrumental in providing.
Ground 1(b)
As to ground 1(b) of the grounds of appeal, we do not consider that it was necessary for the Crown to demonstrate that the appellant's acts of assistance were performed at a time when X had formed the necessary intent for murder. We make the preliminary observation that the point is a somewhat artificial one in any event because, so far as the appellant was concerned, there was every reason to suppose that X had such intent. X stated in evidence that, once the orders to kill had been received from Black, he had never disclosed to the appellant that he had doubts about carrying out the murder or that he had any intention other than to carry out Black's orders according to the modified plan. As to the point of principle, we have already made clear that the liability of a secondary party is derivative from that of the perpetrator. The first step is to prove the commission of the substantive offence by the perpetrator, which includes the need to establish the intention or other form of mens rea necessary in that respect. It is only upon such proof that the ingredients of secondary liability fall to be considered, including consideration of the separate, and in the case of murder less stringent, mens rea required for such secondary liability: see R v Powell : R v English per Lord Steyn at 12D – 14C and per Lord Hutton at 25B – 27E.
Again, as already pointed out, in relation to secondary liability in respect of acts committed by an accused in anticipation of a crime, because of the uncertainty which may exist as to the precise intentions of the eventual perpetrator (whose identity may be unknown to the accessory at the time he renders his assistance) all that is necessary in the secondary party is foresight of the real possibility that an offence will be committed by the person to whom the accessory's acts of assistance are directed. In those circumstances, whereas it will be usual in the case of assistance given directly to the perpetrator prior to the commission of the crime, that both have at the time the mens rea appropriate to their role, it is by no means essential. The point would be more immediately obvious if the position had been one where the appellant (as opposed to Black) had himself directly counselled X to commit the murder and X had at first refused but had thereafter changed his mind and carried out the murder according to the appellant's advice or instructions. It cannot be thought that in such a case the appellant should properly avoid liability.
The judge having carefully considered the cases of R v Rook and R v Powell : R v English , concluded his ruling on this aspect as follows:
We agree with those observations.
Ground 2
Ground 2 criticises the judge's direction on the question of causation. In this respect it is not complained that the judge failed to direct the jury that causation was required. Indeed, the written directions we have already quoted at paragraph 34 above contained a clear direction from the judge that, whatever the form of the accessory's action asserted against each of the defendants, it was necessary to show that he did an act which in fact assisted the principal offender. The complaint is that the judge gave no real guidance to the jury as to the considerations they should have in mind when considering whether or not the necessary causal link between the appellant's acts of assistance and the commission of the crime had been established. Mr Foy concedes that, had the appellant taken X directly to a particular place where he knew that Moore was likely to be within the next few hours, then his argument would be untenable. However, he submits that the appellant's action was not essential to the commission of the offence and was capable of being regarded by the jury as minimal in the circumstances. He submits, and indeed he addressed the jury, on the basis that D's act was designed to prevent or hinder the murder and not to further it. He submits that the judge should have directed the jury to consider the extent of the assistance rendered, and the extent of any hindrance caused, and balance them in order to decide whether the extent of the aid given was too minimal or remote. He points out that the judge nowhere in the course of his summing-up directed the jury in terms to consider whether the action was sufficiently 'proximate' to the commission of the murder. That being so, the jury may have been led to the idea that any action capable of assisting was sufficient, however remote or slight. Mr Foy complains that all the judge told the jury by way of guidance in relation to his submissions was that the appellant could have hindered the murder by telephoning the police or Moore after he had left him at the caravan. Mr Foy submits that this wrongly suggested that what the appellant had done was indeed sufficient by way of assistance, in the absence of a positive withdrawal.
It is correct that the judge dealt with the question of causation broadly as described by Mr Foy. Having referred the jury to the matters set out in the written direction as to which they had to be satisfied in respect of the appellant, the judge said this:
We do not think that this passage can properly be criticised so far as causation is concerned. It rightly reflected the thrust of Mr Foy's submission on the basis of X's evidence and the prosecution's answer to it. While the judge did not at that stage recount the detail of what X said happened in the interval between his being left at the caravan and the murder being committed (that was dealt with later in the summing-up), the passage rightly reflected the position that, if the appellant had installed X in the caravan as a safe house in which to stay and keep the gun as a base from which to strike against Moore, as happened 13 hours later, there was plainly a continuing causal connection (by way of facilitation) between that assistance and the killing.
The burden of Mr Foy's submissions to the jury was directed to seeking to avoid this position by suggesting (in the absence of any evidence on the topic from the appellant) that both the purpose and effect of the appellant's actions was to hinder rather than to further the plan. His argument that the time lag and the visit by Black to the caravan next morning to shorten the shotgun negated that earlier assistance was covered by the judge's reference to Mr Foy's "submissions … on what the rest of the evidence amounts to and you must consider it in that light". Far from being an overwhelming supervening event (see paragraph 55 above), Black's morning visit to the caravan was itself no more than a furtherance of his original instructions, pursuant to which X had been acting when the appellant took him there. In these circumstances, we do not consider that the appellant can have suffered any injustice from the judge's failure specifically to remind the jury of those additional points.
We now turn to the recent statement by X on which the appellant seeks to rely in this appeal. It is to the effect that, having been left at the caravan by the appellant, and before going to sleep, he had been visited at the caravan by a person whom he does not wish to name who said he was under instructions to pick X up and to drive him back to 47 St Martins Street to meet Black. It was then between 10.00pm and 11.00pm. X left the gun and ammunition at the caravan together with the yellow coat he had worn on the journey to the caravan with the appellant. He was then driven back to 47 St Martins Street. George Black was not in fact there, only Lynn Teat and her two children. X had only been at the house for about half an hour when he was aware that Moore was at the front of the house kicking the front door and shouting abuse, apparently under the impression that Black was there. After that incident, X went briefly on foot to a public house nearby in order to sell some heroin to someone, then back to 47 St Martins Street only to be told that Black had telephoned with a message to return to Orton and the caravan. X did so, having been absent for about one hour. He states:
He also states:
Mr Foy submits that, had X given evidence at trial of the events described in his recent statement, it would have rendered any causal connection between the appellant's acts of assistance and the commission of the crime so remote as to be ineffective, without the need for any positive act of 'withdrawal' on the part of the appellant, whether by means of communication to X or information given to the police. He goes on to submit that, had such evidence been given, inevitably the judge would have had to have acceded to the defence submission of 'no case', or at any rate to have directed the jury in fuller terms upon the question of causation. Mr Foy submits that the absence of such evidence coupled with the brief nature of the summing-up on the question of causation renders the conviction of the appellant unsafe.
We do not accept that submission.
So far as s.23(2) of the Criminal Appeal Act 1968 is concerned, the new statement gives no reasons why the facts now spoken to by X were omitted from his evidence at trial. However, we are prepared to regard it as capable of belief. We are also satisfied that it would have been admissible at the trial on an issue which is the subject of appeal and that there is a reasonable explanation, so far as the appellant is concerned, for the failure to adduce the evidence at trial by cross-examination of X or otherwise. However, it does not appear to us that the evidence affords any ground for allowing the appeal (see s.23(2)(b)).
The acts of assistance of the appellant were not limited simply to the motor cycle ride across town to the caravan. He was also instrumental in procuring the caravan as a safe house in which X could stay and where he could keep the gun pending the shooting. So far as the appellant was aware X was going to stay and sleep there until the killing took place. That is exactly what happened save for an hour's unexpected absence. The statement makes clear that, when X departed from the caravan, he left the gun he had taken and the jacket he had used on the instructions of Black in the expectation of returning to the caravan after Black had said whatever he wished to say. Save that X did not see Black, that is again what happened. When X later witnessed Moore's abusive behaviour outside 47 St Martins Street, it was no more than a repeat performance of the behaviour which had prompted Black to give his original instructions that Moore was to be killed. Those instructions, and the assistance given by the appellant to facilitate the crime, remained operative up to the time of the killing. In those circumstances, we consider that any reasonable jury, properly directed, would have been satisfied that a sufficient causal connection was established to render the appellant liable as a secondary party to the murder.
Ground 3
Comparison of the judge's written directions to the jury (see paragraph 34 above) with the necessary elements of proof set out by us at paragraph 71 above shows that elements (a)-(c) were comprehensively covered but that there was no specific inclusion of element (d) i.e. the jury were not directed in terms that a specific intent to assist was required. We repeat the written direction to the jury which specifically related to the appellant, namely that the prosecution must prove:
It is apparent from the transcripts of the legal argument before the judge as to the form of the direction to be given, that he purposely avoided specific use of the words "intention to assist" because of concerns expressed by Mr Farrell.
Mr Foy, in reliance upon the observation of Sir Robert Lowry CJ in Maxwell quoted at paragraph 44 above, pressed for a direction which included the words "intending to assist". He sought a three-limbed direction requiring (i) assistance in fact, (ii) knowledge of a real possibility that murder would be committed and (iii) positive intention to assist. Mr Farrell on the other hand was wary, in the circumstances of the case, that the jury might be led into error if directed that an intention to assist the plan to kill was essential, when (as he submitted) all that was necessary was foresight rather than intention that such crime might occur as a result of the assistance given. In reliance upon Rook , Lynch and Smith & Hogan at p.152, he took the stance that any reference to intention must make it clear that the intention need be no more than an intention to do an act known by the appellant to be capable of assisting, coupled with contemplation/knowledge of the real or substantial risk that murder would be committed. He expressly referred the judge to the observations in Rook at 332 to that effect (see paragraphs 50-55 above).
In those circumstances, the judge settled upon the direction which he gave in respect of the appellant.
If the direction had stopped in the third line after the initials 'PM', Mr Foy accepts that if the jury found that Bryce knew that taking X to a caravan near Pat Moore's home together with his gun, was in order to assist X to kill or cause really serious injury to PM, then it would follow that he was intending to assist.
As to the balance of the direction ("or realising that there was a real possibility he might do so"), the jury were being directed that if they were sure that the appellant deliberately took X to the caravan with the loaded gun, he was guilty of murder if they were sure that he realised that there was a real possibility that X might kill or cause really serious injury to Pat Moore. That direction did not in terms require the taking of X to the caravan with the loaded gun to be linked to the realisation. However the meaning was clear in our view. The judge had earlier, in the written directions, instructed the jury that it was sufficient if the defendant deliberately did what was alleged against him "knowing or contemplating as a real (not fanciful) possibility that the principal offender, with the help he ... is supplying either will or may kill the victim deliberately and unlawfully, intending to do so, or at least will or may intentionally do the victim some serious harm". We take the view that the jury must have understood it in this way.
Mr Foy relies upon a passage in the summing-up, by way of supplement to the written directions, where the judge told the jury they could convict the appellant if they were:
He submits that, whereas the words in the written direction "knowing that this was in order to assist X to kill or cause really serious injury to PM" amounted to sufficient "intent to assist" (see paragraph 75 above), the words "in order to" were absent from the oral passage just quoted, thus leaving it open to the jury to convict on the basis of no more than foresight that his actions might assist X in what he was doing.
We take the view that, in the particular circumstances of this case, the point has no substance. The jury retired with the written directions, which were in our view adequate. Furthermore, the oral direction has to be placed in the context of the evidence in the case, namely that the appellant had, as part of an openly discussed plan to kill Moore, at his own suggestion transported X (plus gun) to a safe house from which to await his opportunity in circumstances in which, so far as the appellant was aware, X intended to kill Moore and had accepted the appellant's offer of a lift in apparent furtherance of that intention. Whatever argument had passed before the judge in chambers, the jury were being told that they could convict if, in the light of the realisation that X might kill Moore with the help which the appellant provided , he nonetheless deliberately took X with his gun to the caravan, then the intention to assist would be sufficiently proved. In the absence of any evidence or suggestion from the defendant that such was not his intention, let alone that his intention was to hinder rather than help, we agree. While it would have been appropriate, and indeed preferable, for the judge at that stage to refer specifically to the necessity for the jury to be satisfied of the appellant's intention to assist X in what X was doing as a step towards the commission of the murder, we do not think that, in the circumstances of the case, the judge's omission renders the conviction unsafe.
There remains one point. Mr Foy has submitted that, by reason of the ruling of the trial judge upon the rival submissions as to the appropriate form of the written directions, he was prevented from submitting to the jury in his final speech that the appellant's intention may have been to hinder rather than help. We have already shown that the first part of the specific question set for the jury in relation to the appellant necessarily involved an intent to assist, as Mr Foy accepted (paragraph 76 above). However, on the assumption that Mr Foy is right, we take the view that this does not render the conviction unsafe. He did invite the jury (as a matter of causation) to find that the appellant's acts did not or may not have assisted, a matter about which the trial judge correctly directed the jury. So far as the appellant's intention was concerned, he gave no evidence; his 'intent to hinder' was no more than an inference which Mr Foy was inviting the jury to draw. In any event, the judge stated, when reviewing the question of the appellant's knowledge or intention:
For the reasons we have already given and in the face of the evidence, the fact that Mr Foy did not address the jury on the issue of intent to hinder does not in our view render the conviction unsafe.
Accordingly, we dismiss this appeal.