Bryce, R. v

A secondary party who assists preliminary steps towards a later offence must intentionally assist the perpetrator, rather than intend to hinder or obstruct the plan. The prosecution must prove that the act in fact assisted the offence, was done deliberately with awareness that it could assist, and was accompanied by contemplation of a real possibility that the offence would be committed.

It is unnecessary that the secondary party intended the substantive offence, or that the perpetrator had already formed the necessary intent when assistance was given. A causal connection may continue despite delay or further preparatory acts. It is displaced only by an overwhelming supervening event or by an effective withdrawal, communicated unequivocally to the perpetrator.

The appellant was convicted at Nottingham Crown Court before Mackay J of aiding and abetting the murder of Patrick Moore. The prosecution alleged that, knowing of a plan to kill Moore, he transported the teenage perpetrator, X, with a gun to a caravan near Moore’s home and arranged for X to remain there.

The appellant contended that his conduct was too remote from the killing, that X had not yet formed an intent to murder when he acted, and that he had sought to hinder rather than assist the plan. He also challenged the jury directions and sought to rely on X’s fresh statement concerning events during the night.

The central issue was the mens rea and causal connection required for secondary liability where assistance is given before the perpetrator commits the offence in the secondary party’s absence.

1. Appeal dismissed. The conviction was safe. The appellant’s transport of X and the gun, and his procurement of the caravan as a safe place from which X could await an opportunity to kill, were capable of constituting assistance which remained causally connected with the murder.

2. Under section 8 of the Accessory and Abettors Act 1861, in a case of preliminary assistance outside the extended joint-enterprise context considered in R v Powell; R v English [1999] 1 AC 1, the Crown must prove: an act which in fact assisted the later offence; a deliberate act known to be capable of assisting it; contemplation of the offence as a real possibility or substantial risk; and an intention to assist the perpetrator in acts known to be steps towards that offence. An intention to assist is required. It is the assistance, not the ultimate offence, which must be intended.

3. The prosecution need not prove that the secondary party intended the murder, or that the perpetrator had already formed a murderous intent when the assistance was provided. Liability is derivative in the sense that the substantive offence and its mens rea must ultimately be proved, but the secondary party need only have contemplated a real possibility that the contemplated offence would be committed.

4. A delay of about 13 hours did not sever causation. The changed arrangement was an agreed method of pursuing the same objective. Black’s later visit to shorten the gun was a further preparatory step, not an overwhelming supervening event. Repentance would not suffice: withdrawal requires conduct countermanding the earlier assistance and giving unequivocal notice to the perpetrator.

5. The written direction, read with the oral summing-up and the evidence, adequately required the jury to find intentional assistance. Although an express reference to an intention to assist would have been preferable, its omission did not render the conviction unsafe. X’s fresh account, even if admissible under section 23(2) of the Criminal Appeal Act 1968, did not undermine the continuing causal connection.

• Court of Appeal (Criminal Division) — dismissed the conviction appeal in [2004] EWCA Crim 1231.

• Nottingham Crown Court (Mackay J) — on 17 December 2002, the appellant was convicted by a 10–2 majority of murder as a secondary party and was sentenced to life imprisonment on 13 January 2003.