The appellant was charged with conspiracy to traffic in a dangerous drug, contrary to the common law and section 4 of the Dangerous Drugs Ordinance Cap 134 of Hong Kong. The prosecution said he had had meetings in Thailand with a man named Needham. who unknown to the appellant was an US undercover drug enforcement officer. It was arranged that Needham would act as courier to carry a consignment of drugs by air from Hong Kong to Australia, the plan being that Needham would travel to Hong Kong, collect the drugs and fly on to Australia. Needham said that throughout his dealings with the appellant he kept the authorities in Hong Kong and Australia informed of the plans and they agreed that he would not be prevented from carrying the drugs out of Hong Kong and into Australia. Although Needham fully intended to carry it out this scheme foundered for practical reasons and he never in fact went to Hong Kong. It was argued that he could not be guilty of conspiring with Needham since Needham himself had committed no offence.
Held:
Lord Griffiths dismissed the defendant’s contention: ‘On the principal ground of appeal it was submitted that the trial judge and the Court of Appeal were wrong to hold that Needham, the undercover agent, could be a conspirator because he lacked the necessary mens rea or guilty mind required for the offence of conspiracy. It was urged upon their Lordships that no moral guilt attached to the undercover agent who was at all times acting courageously and with the best of motives in attempting to infiltrate and bring to justice a gang of criminal drug dealers. In these circumstances it was argued that it would be wrong to treat the agent as having any criminal intent, and reliance was placed upon a passage in the speech of Lord Bridge of Harwich in Reg v Anderson (William Ronald) [1986] AC 27; but in that case Lord Bridge was dealing with a different situation from that which exists in the present case. There may be many cases in which undercover police officers or other law enforcement agents pretend to join a conspiracy in order to gain information about the plans of the criminals, with no intention of taking any part in the planned crime but rather with the intention of providing information that will frustrate it. It was to this situation that Lord Bridge was referring in Anderson. The crime of conspiracy requires two or more persons to commit an unlawful act with the intention of carrying it out. It is the intention to carry out the crime that constitutes the necessary mens rea for the offence. As Lord Bridge pointed out, an undercover agent who has no intention of committing the crime lacks the necessary mens rea to be a conspirator.
The facts of the present case are quite different. Nobody can doubt that Needham was acting courageously and with the best of motives; he was trying to break a drug ring. But equally there can be no doubt that the method he chose and in which the police in Hong Kong acquiesced involved the commission of the criminal offence of trafficking in drugs by exporting heroin from Hong Kong without a licence. Needham intended to commit that offence by carrying the heroin through the customs and on to the aeroplane bound for Australia.’
The Crown cannot direct or authorise a criminal offence to take place. The offence required no more than proof of export without a licence and thus could be committed by an undercover officer agreeing to the export without a licence.
Judges:
Lord Griffiths
Citations:
[1995] 1 AC 111, [1994] UKPC 2, [1994] UKPC 23, [1994] 2 All ER 924, (1994) 99 Cr App R 406, [1994] Crim LR 824, [1994] 3 WLR 514
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Regina v Kingston HL 22-Jul-1994
Involuntary Intoxication not a General Defence
The prosecutor appealed an acquittal on appeal of the defendant for sexual assault, saying that he had not had the necessary intent because of intoxication through drink and drugs. He said that a co-defendant had secretly administered drugs to him. . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 29 May 2022; Ref: scu.245741
