Kenning, R. v

An agreement to perform acts which would merely aid, abet or counsel an offence to be committed by a non-party is not a statutory conspiracy under section 1(1) of the Criminal Law Act 1977. Even if the agreement is carried out, the parties’ acts do not necessarily amount to an offence unless the primary offender commits the substantive offence.

Accessory liability requires the actus reus of the substantive offence. An attempt to aid, abet, counsel or procure an offence is itself excluded by section 1(4)(b) of the Criminal Attempts Act 1981. An indictment alleging such an incapable conspiracy charges an offence unknown to law, requiring the resulting convictions to be quashed.

The appellants ran or worked in a hydroponics business which sold equipment, cannabis seeds and related literature. Undercover officers received advice about growing cannabis and avoiding police detection. The appellants were charged with conspiracy to aid and abet, and conspiracy to counsel, the production of cannabis.

At the Crown Court at Derby, all three appellants were convicted of the first conspiracy count. Fenwick and Blackshaw were also convicted of the second. Fenwick was separately convicted of possessing cannabis with intent to supply, after cannabis and plants were found at his home.

The appeals challenged whether the first two counts alleged offences known to law and, for Fenwick, whether the summing-up on intent to supply was adequate.

1. The appeals were allowed in part. The convictions of all appellants on count 1, and of Fenwick and Blackshaw on count 2, were quashed. Fenwick’s appeal against his separate conviction for possession of cannabis with intent to supply was dismissed.
2. The judge’s direction on counts 1 and 2 was legally unsound. A person cannot be convicted as an accessory unless the actus reus of the substantive offence has occurred. Nor is attempting to aid, abet, counsel or procure an offence itself criminal, by reason of section 1(4)(b) of the Criminal Attempts Act 1981.
3. Section 1(1) of the Criminal Law Act 1977 requires an agreed course of conduct which, if carried out in accordance with the parties’ intentions, will necessarily amount to or involve an offence committed by one or more parties to the agreement. Where the parties agree only to act as accessories to an offence expected to be committed by someone outside the agreement, their agreed acts do not necessarily constitute an offence. The primary offender may not commit the substantive offence.
4. The court endorsed the conclusion of the Court of Appeal in R v Hollinshead [1985] AC 975 that an agreement to aid and abet an offence cannot constitute statutory conspiracy under section 1(1). Counts 1 and 2 therefore charged offences unknown to law. The judge should have upheld the submission of no case to answer. A retrial was inappropriate.
5. Count 3 depended on its own evidence. The decisive question was whether Fenwick intended the cannabis solely for personal use or intended to supply it to others for profit. The judge fairly placed that simple issue, and the relevant evidence, before the jury. The court also declined to alter Fenwick’s remaining sentences to secure his immediate release.

• Court of Appeal (Criminal Division): In [2008] EWCA Crim 1534, the court quashed the convictions on the two conspiracy counts, dismissed Fenwick’s appeal on possession with intent to supply, and declined to order a retrial.
• Crown Court at Derby: The appellants were convicted on conspiracy counts 1 and 2 as applicable. Fenwick was also convicted of possession of cannabis with intent to supply.