Montague, R v

Where the evidence permits, the prosecution may advance criminal liability as principal or accessory in the alternative. It must state the real nature of the allegation with sufficient clarity for the accused to know the case to meet. A conviction is not unsafe solely because the summing up blurs those labels, where the prosecution case and the required participation are clear and the distinction causes no material unfairness. For possession offences, joint possession requires more than knowledge. It requires actual possession or control, which may include a common pool available to the participants.

The appellant was convicted at the Crown Court at Isleworth of two offences of possessing or controlling articles for use in fraud, contrary to section 6(1) of the Fraud Act 2006. The prosecution alleged that he participated with co-accused in a plan to possess fraudulent cards, driving licences and related material.

He appealed against conviction, contending that the judge's joint-enterprise direction permitted conviction as a secondary party despite an asserted assurance that the case would be left only on the basis of principal liability. He argued that this undermined his decision not to give evidence and deprived him of a defence. The central issue was whether the directions rendered the convictions unsafe.

Appeal dismissed. The convictions were safe.

1. The court held that the written direction did not clearly confine liability to the appellant as a principal. A principal charged with possession or control needed actual possession or actual control of the articles. A direction which treated participation in a joint enterprise as an alternative could permit conviction as a secondary party. Joint possession also required more than knowledge that an article was held by a confederate. The court applied the common-pool approach in R v Searle [1971] Crim.L.R. 592.

2. That defect did not determine the appeal. The prosecution case had always been that the appellant was a fully participating member of a fraudulent plan to possess or control the articles. On the evidence, the difference between participation as principal and as accessory made no material difference to the allegation he had to meet. The court applied the fairness principles in R v Robert Vincent Giannetto [1997] 1 Cr. App. R. 1 and DPP for Northern Ireland v Maxwell [1978] 1 W.L.R. 1350: alternative liability may be left where the case is fairly and clearly put.

3. The judge had expressly directed that the earlier provision of photographs alone could not establish guilt. The jury therefore had to find participation, with the necessary intent, in the plan to possess or control the articles on the date charged. There was no substantive assurance that excluded accessory liability, no resulting unfairness, and no material basis for the appellant's assertion that the legal label affected his decision whether to testify. Section 8 of the Accessories and Abettors Act 1861 also permits an accessory to be treated as a principal offender.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2013] EWCA Crim 1781.
• Crown Court at Isleworth — on 25 January 2013, the appellant was convicted of two counts contrary to section 6(1) of the Fraud Act 2006; on 8 March 2013 he received concurrent sentences of five months' imprisonment.