The defendant said that his involvement in the murder of which he had been convicted had been secondary only. He was alleged to have transported the killer and the gun which he used to commit the murder to a caravan near the victim’s home so that the killer could wait for an opportunity to carry out the killing. The appellant’s case was that he knew nothing of the gun or the plan to murder the victim. He had simply given the eventual killer a lift. He did not give evidence. At the time of the assistance, the killer, on his own evidence, had had reservations about carrying out the killing, although he had not expressed these reservations to anyone. His resolve to do so was strengthened by a subsequent visit from the person who instigated the crime. The trial judge directed the jury that the appellant would be guilty as an accessory if he deliberately assisted the killer by taking him to the caravan with the gun, knowing that this was in order to assist the killer to kill or cause really serious injury to the victim, or realising that there was a real possibility that he might do so. The fact that the killer had not reached a final decision, in his own mind, whether to go through with the murder was no defence. It was submitted on appeal against conviction that the case should have been withdrawn from the jury in the absence of evidence that, at the time of the assistance, the principal offender had formed the intent to commit the offence.
Held: The submission was rejected. All that was necessary in the secondary party was foresight of the real possibility that an offence would be committed by the principal.
The prosecution had to prove intentional assistance. They must prove that an act done by the appellant in fact assisted the later commission of the offence, an act which the appellant did deliberately, realising that it was capable of assisting the offence; and that at the time of doing the act, the appellant contemplated the commission of the offence, that is he foresaw it as a ‘real or substantial’ risk or ‘real possibility’.
Judges:
Mr Justice Astill Lord Justice Potter The Honourable Mr Justice Hooper
Citations:
[2004] EWCA Crim 1231, [2004] 2 Cr App R 35
Links:
Statutes:
Accessory and Abettors Act 1861 8
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Powell (Anthony) and Another; Regina v English HL 30-Oct-1997
When the court looked at the issue of foreseeability of murder in an allegation of joint enterprise, there was no requirement to show intent by the secondary party. The forseeability of the risk of the principal committing the offence from the point . .
Cited – National Coal Board v Gamble QBD 1958
M drove a lorry used for carrying coal from the NCB quarries to power station. H was employed by the NCB to operate a weighbridge, providing tickets to drivers as to the weight on board, and aa a delivery note. On this occasion, the lorry was . .
Cited – Director of Public Prosecutions for Northern Ireland v Lynch HL 1975
The House considered the availability of duress as a defence on a charge of aiding and abetting murder. Referring to the basic elements of criminal liability, mens rea and actus reus: ‘Both terms have, however, justified themselves by their . .
Cited – Regina v Rook CACD 29-Jan-1993
The fact that the appellant had absented himself on the day the murder was carried out by the defendant who did the killing did not amount to an unequivocal communication of the appellant’s withdrawal from the scheme contemplated at the time he gave . .
Cited by:
Cited – Equality and Human Rights Commission v Prime Minister and Others Admn 3-Oct-2011
The defendant had published a set of guidelines for intelligence officers called upon to detain and interrogate suspects. The defendant said that the guidelines could only be tested against individual real life cases, and that the court should not . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 10 June 2022; Ref: scu.196969