DPP v Andrew Armstrong
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE TUCKEY,MR JUSTICE MOSES |
| Judgment Date | 05 November 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J1105-10 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CO/2044/99 |
| Date | 05 November 1999 |
[1999] EWCA Civ J1105-10
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
DIVISIONAL COURT
Royal Courts of Justice
The Strand
London
Lord Justice Tuckey
and
Mr Justice Moses
CO/2044/99
MR P COOKE (instructed by the Crown Prosecution Service Birmingham) appeared on behalf of THE APPELLANT
MR A SHARPE (instructed by Messrs Khan & Co, Skegness PE25 2AG) appeared on behalf of THE RESPONDENT
Friday 5 November 1999
This is an appeal by way of case stated from the decision of Mr Parsons, a Deputy Stipendiary Magistrate sitting in Birmingham made on 16 November 1998. On that day he heard an information preferred by the appellant prosecutor against the respondent, Mr Andrew Armstrong, that between 14 November 1997 and 30 November 1997 he had incited Gareth Robert Tobin (known as "John") to distribute indecent photographs of children contrary to common law. The magistrate upheld the submission of no case at the end of the prosecution's case, and was subsequently asked to state the case which we have before us.
The case sets out the facts which the magistrate found proved. They are as follows. A police informer had been contacted on 9 November 1997 by someone asking to be supplied with pornography involving young girls "no younger than, say, 12 years old". The informer told the person who contacted him that he did not deal in such material, but gave him a mobile telephone number to contact and told him to speak to John. John was a pseudonym used by Detective Constable Tobin (the person named in the charge), who was an officer with the Paedophile and Pornography Unit at the Bradford Street Police Station in Birmingham.
On 19 November 1997 the officer received a telephone call on his mobile from someone who asked to speak to John. The person calling asked for pornography involving girls "not younger than, say, 12 years" and arrangements were made between the two men for such a transaction to take place. The respondent was arrested on 4 February 1998 and we are told that in interview he admitted that he had made the call but suggested that he was merely making an inquiry and that the request was not for anything indecent.
In the course of cross-examination the officer was asked whether he had any intention of supplying the material which he had been asked for and, quite naturally, said no, he did not. However, he said that he had access to such material from the police stores since the unit with which he worked came into possession of such material and dealt with it all the time.
At the end of the prosecution case Mr Sharpe, who appears for the respondent then as he does today before us, submitted that there was no case to answer. His contention was that in the light of the officer's answer the prosecution had failed to make out a case since the intention of the officer was relevant to the commission of the offence and, furthermore, the fact that he was not going to supply the material made it impossible for the offence to be committed. His submissions are recorded in terms by the magistrate to include the contention that "the person incited must act with a parity of mens rea to the inciter". The appellant prosecutor contended that there was no such rule of law and that it was possible for the officer to have committed the offence since he had access to the material which he had been invited to supply.
The magistrate was referred to the cases of R v Shaw [1994] Crim LR 365 and R v Curr [1968] 2 QB 944, (1967) 51 Cr App R 113. In explaining how he reached his conclusion he said:
"(a) The police officer had made it clear in is evidence that he had no intention of supplying the Respondent with child pornography.
(b) Upon reading the cases of R v Shaw and R v Curr, that these decisions were binding upon me and require the persons to whom the incitement is made to have a parity of mens rea to the inciter.
(c) There was no evidence that the person incited had the required mens rea in that he had no intention of actually supplying child pornography.
(d) Because the evidence of the police office was that the indecent material would not have been supplied I was satisfied that the full offence could not have been committed and was therefore impossible."
The questions he poses for the court, so far as they are relevant to the points which have been argued before us, are:
"(i) Was I correct to decide that the Respondent had not incited DC Tobin to distribute indecent material because [he] never had any intention of doing so?
(ii) Was I correct in holding in law that the evidence of the police officer meant the offence was impossible to perform?"
Before considering the two authorities referred to by the magistrate, it is helpful to analyse the position from first principles, free from authority. Incitement, like attempt and conspiracy, is an "auxiliary" (as Lord Diplock would have it) or "inchoate" (as the authors of text books would have it) offence. It is one of the ways in which criminal responsibility attaches to conduct short of the commission of the full offence. The actus reus of the offence is the indictment by the defendant of another to do something which is a criminal offence. He must do so with the intention that if the other person does as he asks he will commit a criminal offence. That is the mens rea. On this analysis the intention of the person incited is entirely irrelevant. It is put in Archbold at paragraph 33-70 as follows:
"To solicit another to commit a crime is indictable at common law, even though the solicitation or incitement is of no effect."
Blackstone refers also to the fact that the offence may be committed where the person incited flatly refuses to commit the offence.
The nature of the offence of incitement is accurately defined in the draft Criminal Code produced by the Law Commission in their paper No 177 at clause 47 which says:
"A person is guilty of incitement to commit an offence or offences if—
(a) he incites another to do or cause to be done an act or acts which, if done, will involve the commission of the offence or offences by the other; and
(b) he intends or believes that the other, if he acts as incited, shall or will do so with the fault required for the offence or offences."
On this analysis of the law there is no principle of parity of mens rea of the kind contended for by the respondent and accepted by the magistrate. Were that to be the law, then all the cases about agentprovocateur would have been wrongly decided because in each such case (where often the agent provocateur is a policemen) if it were a defence to the defendant to say: "Well, the officer never intended to commit the offence which I asked him to commit", there would be no offence of incitement and many people would be in prison for committing such offences who should not be.
I turn to the related topic of impossibility. Obviously if what the person incited is asked to do is not a criminal offence the offence of incitement cannot be committed. There are other situations in which...
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