Court of Appeal

Published date01 February 1986
Date01 February 1986
Subject MatterArticle
R. v. Calhaem
novel question for the Court of Appeal in R. v. Calhaem [1985]
826 was whether, in order to establish liability for
"counselling" another to commit an offence, it had to be shown that
there was a causal connection between the acts of the counsellor
and the commission of the principal offence by that
The defendant was indicted for murder pursuant to section 8 of
the Accessories and Abettors Act 1861 (as amended by section
65(4) of and Schedule 12 to the Criminal Law Act 1977). The
prosecution case was that the defendant had counselled aprivate
investigator called Zajac to murderthe victim who had been having
an affair with the defendant's solicitor with whom the defendant
was infatuated. Zajac pleaded guilty to the murder and testified to
having been hired and paid by the defendant to commit the offence.
He stated in evidence that he had gone to the victim's house but had
earlier decided not to kill her, and had planned merely to act out a
charade which would satisfy the defendant that an attempt had been
made at the killing. However, when the victim screamed he had
gone beserk and killed her with a hammer.
The defendant was convicted of murder after the trial judge had
directed the jury that
counsel" within section 8 (above) meant
to incite, solicit, instruct, authorise, or to
somebody up to
something" and that the Crown had to prove that the defendant
counselled Zajac in that sense to kill the victim, that the victim was
killed by Zajac in circumstances that amounted to murder and that
such killing was within the scope of that instruction or
authorisation. The trial judge had rejected defence counsel's
submission that "counselling" required asubstantial causal
connection between the acts of the secondary offender and the
commission of the offence and that, on Zajac's evidence, there was
no causal connection, or at any rate no substantial causal
connection. The defendant appealed against conviction to the
Court of Appeal on the ground, inter alia, that the trial judge had
seriously misdirected the juryon the law as to the ingredients of the
offence of counselling and that the trial judge should have directed
that the prosecution had to show that the instruction given by the
defendant was a substantial cause of the killing.
Court of Appeal dismissed the appeal. Parker L.J. delivered
the judgment of the court, and, drawing assistance from the words
of Lord Widgery c.J. in Att.-Gen's Reference
1975) [1975]
778, he stated that the court should give to the word
"counsel" its ordinary meaning "which is
advise, solicit, or
something of that sort" (at p. 830). There is no implication in the
word itself, he added, that there should be any causal connection
between the counselling and the offence.
is true, he stated, that,
unlike the offence of incitement, the actual offence must have been
committed, and committed by the person counselled. To this extent
there must clearly be, first, contact between the parties, and,
secondly, aconnection between the counselling and the murder.
Equally, the act done had to be done within the scope of the
authority or advice, and not, for example, accidentally when the
mind of the final murderer did not go with his actions. But the court
could see no need to import anythingfurther into the meaningof the
natural meaning of the word does not imply the
commission of the offence. So long as there is counselling
long as the principal offence is committed by the one counselled,
and so long as the one counselled is acting within the scope of his
we are of the view that the offence is made
(p. 834). Accordingly, the court concluded that the direction by the
trial judge was correct, and dismissed the appeal.
ruling in the present case is important since the point at issue
was one upon which, it seems, there was previously no direct
authority. The decision of the Court of Appeal, as Lord Parker
acknowledged, closely reflects the views of certain leading
commentators on this matter (see, e.g, Smith and Hogan, Criminal
1983), pp. 122-123; Glanville Williams, Criminal
Law, The General Part (2nd ed., 1961), pp. 381-383).
David Cowley
Senior Lecturer in
The Polytechnic
Newcastle upon Tyne

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