Court of Appeal
| DOI | 10.1177/002201839505900303 |
| Published date | 01 August 1995 |
| Date | 01 August 1995 |
| Subject Matter | Court of Appeal |
COURT
OF
APPEAL
REFERENCE TO REPORTS OF PARLIAMENTARY PROCEEDINGS
R v Rawlings (Practice Note)
The Practice Note which appears in
[1995]
1 WLR 192 sub nom Practice
Direction (Hansard Citation) and in the Index sub nom R v Rawlings
(Practice Note) and is headed R v Rawlings may be said to have finally set
at rest an argument which has gone on throughout the century. At a time at
which there were no reports of parliamentary proceedings other than the
highly garbled accounts which appeared in the magazines at the time, it was
reasonable of the courts to adopt a rule that, in the interpretation of statutes,
reliance must be placed exclusively on what Parliament has said in the
statute asenacted, and not on what parliamentarians were said to have said.
With the coming of Hansard, the courts' practice lost its rationale; and this
century has seen its gradual erosion in cases such as Pepper v Hart
[1993]
AC 593and Pickstone v Freemans pic
[1989]
AC 66 (which are cited in the
Practice Note).
The Practice Note providesthat throughout the Supreme Court (including
the Crown Court and the county courts), whenever it isintended to base an
argument relating to the construction of a statute upon what was reported
in Hansard as having been said in Parliament, a copy of the relevant extract
from Hansard must be served on the judge and the other parties, at least
five
days before the hearing. The Practice Note is thus the tombstone
signalling the demise of the arguments which have been put forward against
the practice of such citation. These
arguments-for
example, that there is
no reason to believethat persons have in factsaid what they intended to say
or what they think they have said and that it is difficult enough to
construe what Parliament has written, without having to construe their oral
statements-must
now disappear, although, to be sure, those arguments
remain largely unanswered.
One difficulty remains. The courts construe statutes as if they were
concerned with the intentions of members of Parliament, which is a fiction,
in that the document is produced by the draftsman. When, recently, the
Criminal Division of the Court of Appeal accepted that, as the statute in
question applied to Scotland, a term used in it was intended to be construed
as a term of art in Scottish law, and not in the very different sense in which
the term is used in England, Wales and Northern Ireland (to which the
statute also applied), of how many members of Parliament from those three
countries could it be said that, when they consented to the passage of the
Billcontaining that term, they had realised and intended that the term was
to be construed in the sense in which the court accepted it as expressing the
intention of Parliament?
236
Court
of
Appeal
CONVICTION OF ACCESSORY AFTER ACQUITTAL OF PRINCIPAL
RvMillward
R v Wheelhouse
The owner
of
atractor which he knew to be poorly maintained and
of
which
the hitch-mechanism (for attaching the trailer) was (also to his knowledge)
poorly maintained and defective, instructed his employee to drive the tractor
with its trailer on a highway. The result was that the trailer became detached,
veered across the road and hit an on-coming car, killing a person in it. The
driver was charged, as principal, with causing death by reckless (now
dangerous) driving contrary to s I
of
the Road Traffic Act 1988 and the
owner (who was the appellant in R v Millward (1994) 158
IP
1091) was
charged with aiding and abetting, counselling and procuring, the commission
of
that offence. The driver, as principal, was acquitted, but the owner was
convicted as accessory and was sentenced to 18 months' imprisonment and
disqualified for 18 months, even though he had not been present at the time
of the accident. The prosecution's case was that the recklessness was not in
the manner
of
driving, but was solely confined to the state
of
the hitch-
mechanism and that the owner was guilty
of
the offence solely in view
of
his
knowledge
of
the state
of
the hitch-mechanism. His absence on the occasion
of
the hitch-up of the trailer was, like his absence from the scene of the
accident, quite immaterial. The question whether the mens rea of this
offence can be in relation to the defective state of the vehicle is one which
in the past was the subject
of
conflicting decisions: see R v Crossman
[1986]
RTR
49 and R v Peters [1933] Crim LR 519; but in relation to the current
offence
of
dangerous driving under the provisions
of
the 1988 Act, as
amended by the Road Traffic Act 1991, there is express provision for the
situation in terms which give the same result as the decisionin this case.The
allegation made by the prosecution in this case was in effect that the owner
had procured his employee to commit the offence, of which the employee, as
co-defendant, had been acquitted. He argued that, since the principal had been
acquitted, there was no offence to which he, the owner, could be said to be
accessory. The issue before the Court of Appeal was, therefore, whether an
accessory's convictiondepends on the prior conviction of the principal, at least
where he is prosecuted, or whether it is sufficient to show that the actus reus
of the offence has been committed by the principal, provided the necessary
mens rea was proved against the accessory.
The appellant's submission was that the aiders and abettors and coun-
sellors and procurers mentioned in s 8 of the Aiders and Abettors Act
1861 must, following the decision in A-G's Reference
(No
1
of
1975) (1975)
61 Cr App R 118, be treated as four separate categories
of
persons, so that
here the question was whether the appellant could be said to have procured
the offence of which the principal had been acquitted. He argued not only
that
proof
of the actus reus alone was insufficient, but also that the offence
of
causing death by dangerous driving cannot be committed merely by
causing a tractor to be taken on the road in a defective condition. Before
that offence can be said to be established, the mental element imported into
the offence by the statutory use
of
the word 'recklessly' must be imported
237
Journal
of
Criminal Law
into the offence committed by the principal. The court held, however, that
if the actus reus is proved, and the principal is acquitted for some reason
personal to him, such as lack of mens rea, it suffices that the prosecution
prove that the accessory has the requisite mens rea.
It
followed that the
direction given to the jury in the appellant's first trial, namely that the
conviction or acquittal of the two defendants should stand or fall together,
was erroneous and that the direction given at the second trial was correct,
namely that it isnot necessary for the driver to beguilty before the accessory
can be found guilty. The court expressed the opinion that the quashing
of
the conviction of the accessory in Thornton v Mitchell
[1940]
I All ER 339
was to be explained by the fact that there the driver had not committed the
actus reus of the offence. The decision relied on, on the present occasion,
was R v Cogan and Leak (1975) 139 JP 608, where it was held that the
accessory, who had the necessary mens rea, was guilty, even though the
principal was not guilty, owing to his lack of mens rea. In applying this
principle on the present occasion, the court stated that no distinction can be
made, for this purpose, between a procurer and an aider and abettor.
Although procuring does not entail a common purpose between procurer
and principal, whereas aiding and abetting generally does, that distinction
is irrelevant in the application of the rule that if the principal has performed
the actus reus, the accessory's mens rea will make the accessory liable. Thus,
the statement to be found in R v Calhaem (1985) 81 Cr App R
131
that in
aiding and counselling cases 'the offence must have been committed before
anyone can be convicted as an aider or abettor, counsellor or procurer' can
mean no more than that the actus reus of the offence must be proved.
The conclusion reached in the present case is limited to the proposition
that the accessory who is guilty of mens rea will be guilty as accessory if he
has procured the principal to commit the actus rea
of
the offence, whether
that principal is guilty of the offence of not. If, however, the person charged
as principal has a double defence (that he was guilty neither of the mens rea
nor the actus reus), then the procurer is guilty as principal, since he has
committed the offence by using an innocent agent: cf
[1994]
Crim LR 527.
Here, the court upheld the conviction as accessory, as it could not be said
(as was said in Thornton v Mitchell (above» that the driver had not
committed the actus reus. The sentence of 18 months' imprisonment was
also upheld, notwithstanding the 'feelings
of
bewilderment' of the appellant
that he should have been convicted, even though the driver was acquitted,
for
'that
does suggest to us that even now he does not really appreciate the
gravity of his criminal act'.
In R v Wheelhouse
[1994]
Crim LR 756, the appellant submitted that the
decision in R v Mil/ward (above) was erroneous and was inconsistent with
the decision in Surujpaul v R
[1958]
3 All ER 300, where the Privy Council
appears to have been of the contrary opinion. In R v Wheelhouse, the
appellant had sold a car to a purchaser who was unsatisfied with it and
wished to have his money back. The appellant collected the car from the
purchaser, in order to show it to a new purchaser, but returned it, as the
new purchaser could not 'find the money'. He later gave to a man the keys
of the car, together with the key to the garage in which it was kept and a
map of the location in which the garage was situated. This man brought the
238
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